Plaintiffs v Defendant

2 Heather died before her father, on 10 July 2013. She was survived by her four children, Margaret Ann Ritter, Katherine Brown, Maurice James Scott and Peter Kenneth Scott.

3 By the will, Jack appointed Kenneth, David and Ruth as executors and trustees, and disposed of his entire estate by clause 5, in the following terms:

My executors hold my estate UPON TRUST to divide it equally between such of my children KENNETH JOHN SILVA DAVID JAMES SILVA JANET RUTH DA SILVA HELEN SAMUELS and LYNETTE DAWN BUDDEN who survive me but if a child of mine has already died or dies before attaining a vested interest leaving children who attain Twenty-five (25) years then those children shall take equally the share which their parent would have otherwise taken.

4 Probate of the will was granted to Kenneth and David (the Executors) on 19 March 2020, with leave reserved for Ruth to come in and prove the will.

5 The Executors consider that, properly construed, the will requires them to divide Jack's estate equally between his five surviving children, and does not provide for any payment to Heather's children. Heather's son Peter accepts that to be the correct construction of the will, but contends that the will does not give effect to Jack's instructions. Peter maintains that Jack's intention was to provide that Heather's children should take equal shares in the share of the estate that would have gone to Heather if she had still been alive. By summons filed 17 September 2020, Peter seeks an order under s 31(1) of the Wills Act 1997 (Vic), rectifying clause 5 of the will to give effect to Jack's intentions.

6 The issues for determination, and a summary of my conclusion in relation to each issue, are:

(a) What was Jack's actual intention in relation to clause 5 of the will?

Jack's actual intention was to provide that the share of his estate that would have gone to Heather, had she lived, was to be divided equally between her children.

(b) Does clause 5 of the will, upon its proper construction, carry out Jack's intention?

No.

(c) If not, is that because the will does not give effect to Jack's instructions?

Yes. Clause 5 of the will does not give effect to the instructions given by Jack to Malcolm Spottiswood, the solicitor who drafted the will.

(d) If so, should the will be rectified, and in what way?

The will should be rectified, by replacing clause 5 with the following:

My executors hold my estate UPON TRUST to divide it equally into six (6) parts as follows:

(a) one (1) such part to each of my five (5) children KENNETH JOHN SILVA, DAVID JAMES SILVA, JANET RUTH DASILVA, HELEN SAMUEL and LYNETTE DAWN BUDDEN; and

(b) one (1) additional part to the children of my late daughter HEATHER RAYMOND, MARGARET ANN RITTER, KATHERINE BROWN, MAURICE JAMES SCOTT and PETER KENNETH SCOTT, in equal shares.

8 Section 31(1) of the Wills Act provides:

The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied that the will does not carry out the testator's intentions because -

(a) a clerical error was made; or

(b) the will does not give effect to the testator's instructions.

9 The applicable legal principles were summarised by Whelan J in Re Estate of Dyranda Judith Prevost:[2]

1. Before the power of rectification can be exercised the Court must be satisfied that the will was so expressed that it failed to carry out the testatrix's intentions, and also what it was that the testatrix did intend concerning the part of the will which is to be rectified.
2. What must be shown is what the testatrix's actual intention was, not what her intention probably would have been had she thought about the matter.
3. Although the standard of proof is on the balance of probabilities, clear and convincing proof is required.
4. It is not sufficient for rectification to establish that the testatrix would not have wished for an intestacy, or would not have wanted her property to go in a way that, in the events which have happened a particular clause results in the property going.
5. If there is no evidence to show what the testatrix's intention was in the event of certain things happening, the Court cannot rectify the will.

10 The testator's intentions must be examined as at the date of the will, not the date of death.[3]

11 The authorities caution that the Court should recognise the gravity of altering a will to change the disposition of a deceased person's property, and should take great care in evaluating the evidence of the deceased's intention.[4] I accept the Executors' submission that the Court must feel an actual persuasion that the testator's intentions are not given effect in the will before contemplating its rectification, commensurate with the gravity of that step.[5]

12 Jack made an earlier will, dated 11 May 1992 (penultimate will), by which he appointed Heather and Kenneth as his executors and trustees. Clause 4 of the penultimate will disposed of Jack's entire estate as follows:

I give devise and bequeath the whole of my real and personal estate to my trustees upon trust:

(a) to pay all my debts funeral and testamentary expenses and all duties payable by or for my estate;

(b) to give the residue of my estate such of my children (including my adopted daughter HELEN SAMUELS) who survive me and if more than one in equal shares but if any of them die before me leaving children who survive me then those children shall take equally the share which their parent would otherwise have taken.

13 It was common ground that, if the penultimate will had been Jack's last will, Heather's children would have received her share of the estate.

14 It was also common ground that this was not the effect of clause 5 of the will dated 30 March 2014. The first part of clause 5 divided the estate into five equal parts, and gave one part to each of Jack's five named children. The second part of the clause provided that, if any of the five named children did not survive Jack, that child's share would go to their surviving children in equal parts. Because Heather was not named in the first part of clause 5, there was no basis for the second part of the clause to operate in relation to her. The words 'if a child of mine has already died' had no independent dispositive effect.

15 Further, there is repetition in the phrase 'but if a child of mine has already died or dies before attaining a vested interest'. The words 'has already died' are to the same effect as 'dies before attaining a vested interest', and so one of those alternatives is redundant.

What was Jack's actual intention in relation to clause 5 of the will?

16 Peter relied principally on the evidence of Malcolm Spottiswood, the solicitor who drew the will on Jack's instructions. Before his retirement in September 2015, Mr Spottiswood had practised as a succession solicitor and public notary for 18 years. Over that time he prepared wills and other estate planning documents for more than 7,000 clients and administered over 350 deceased estates. He was an accredited specialist in wills and estates from 1 October 2000 until his retirement.

17 Mr Spottiswood had acted for Jack's brother Ron Silva and sister-in-law Janice Silva since 1998. Mr Spottiswood recalled that Ron contacted him and asked him to attend upon Jack to prepare a will, following the death of Jack's daughter Heather. On 20 November 2013, Mr Spottiswood met Jack at his home in Wantirna South. Ron and Janice were also at the house, but were not present when Jack gave his will-making instructions to Mr Spottiswood. In his affidavit dated 10 September 2020, Mr Spottiswood deposed:[6]

I took instructions from [Jack] to prepare his Will on 20 November 2013. Whilst I cannot recall the precise details of the discussions held with Mr Silva in that meeting, I recall that the reason [Jack] wanted to prepare a new Will was to address changes following the death of one of his daughters, Heather. I recall that [Jack] wished to ensure that Heather's children would receive the share of his estate that Heather would have received along with her siblings if she had survived [Jack]. Those instructions informed my drafting of the Will.

18 He drafted the will the same day, in a way that he considered gave effect to those instructions. He explained in his affidavit what he had attempted to achieve with his drafting of clause 5 of the will:[7]

Mr Silva's estate was to be divided between "such of my children KENNETH JOHN SILVA DAVID JAMES SILVA JANET RUTH DA SILVA HELEN SAMUELS and LYNETTE DAWN BUDDEN who survive me" which is a class of beneficiaries which did not, by virtue of her death, name Heather. The Will then provided that "if a child of mine has already died or dies before attaining a vested interest leaving children who attain Twenty-five (25) years then those children shall take equally the share which their parent would have otherwise taken." I intended that the expression "a child of mine" to open the class of all children sired by Mr Silva and thereby covered all children including his deceased daughter and her children. If Mr Silva had intended to exclude his daughter, I would have included the words "any such" before "child of mine" to close the class. A further reason I used this drafting was to ensure that the class remained open so that if any other of [Jack's] children predeceased him their children would likewise benefit.

19 Jack gave his will-making instructions orally rather than in writing. Mr Spottiswood said that during their meeting he wrote information on the standard sheet that he used to take instructions for a will - such as full name and address, the names of the executors, the names of the attorneys if those were to be different from the executors, and a sketch of the family structure. He also wrote down the names of Jack's children. Unfortunately, Mr Spottiswood no longer has the notes of the instructions that he took on 20 November 2013.

20 Mr Spottiswood did enter some of the information provided by Jack into the electronic database he used for client records. That information did not include the instructions given by Jack about the disposition of his estate. Mr Spottiswood explained in his affidavit why he had not included a note of those instructions in his database:[8]

Because of the relative simplicity of the instructions [Jack] provided to me with respect to his Will, I did not add any specific notes to [Jack's] file in my electronic data base. The provisions of Mr Silva's Will were completely consistent with the testamentary intentions of almost all other testators in my experience who have outlived a child but are survived by the children of the deceased child. Given that context, I say that if [Jack] had told me that he wanted to exclude Heather's children from his Will, I would have asked [Jack] to explain to me why he wished to do so. I would then have recorded the reasons he gave in my electronic data base. The fact there is no record in [Jack's] file in my electronic database confirms my recollection that [Jack's] instructions were to include Heather's children for the purpose of benefiting from the share of [Jack's] estate that Heather would have taken along with her siblings had she survived [Jack].

21 In his evidence at trial, Mr Spottiswood said that the will he drafted following the meeting on 20 November 2013 recorded Jack's instructions. He did not recall whether he had written down Jack's will-making instructions in relation to Heather's children on his instruction sheet. He said that 'as I drafted the will within 24 hours, it wasn't necessary for me to write that down'.[9]

22 The Executors submitted that Mr Spottiswood's evidence of Jack's will-making instructions should be treated with caution, in the absence of any contemporaneous written record of those instructions. They argued that he had little if any independent recollection of his attendance on Jack in November 2013, and his evidence was a reconstruction that could not be relied upon.

23 Having considered Mr Spottiswood's evidence carefully, I accept it as both reliable and credible. There are a number of reasons for that conclusion.

24 First, Mr Spottiswood did have some independent recollection of his meeting with Jack on 20 November 2013 and the instructions he received. That recollection included the fact that Jack's daughter had died, and that he 'wanted to make sure that the children of his deceased daughter benefitted in his estate the same way as his other grandchildren would'.[10]

25 Second, I accept Mr Spottiswood's explanation of what he was trying to achieve by his drafting of clause 5 of the will. Mr Spottiswood has consistently maintained that his drafting of clause 5 had the effect that Heather's share of her father's estate would go to her children. His explanation of his drafting given in a letter written at Peter's request in about May 2020 was the same as his evidence at trial. I accept that the redundant phrase 'has already died' was intended by Mr Spottiswood to refer to Heather. There is no other reason for those words to have been included in the clause.

26 Third, Mr Spottiswood's evidence of Jack's instructions is consistent with other evidence of what Jack said about his intentions at around the time he made the will.

(a) Janice said that, before Jack met with Mr Spottiswood on 20 November 2013, he told her and Ron that 'his wish was that Heather's children would take the share of his estate that Heather would have taken had she survived him'. I considered Janice to be a witness of truth, and I accept her evidence. She was a disinterested witness, in the sense that neither she nor Ron stand to benefit from the will. She gave her evidence in a clear and straightforward fashion, and responded to questions in cross-examination without obfuscation. She acknowledged that Jack was a private man, but was firm in her recollection that he had spoken of his intentions to her and Ron. There was a faint suggestion in argument that she had been sticking her nose in to Jack's private affairs, although this was not put to her in cross-examination. I do not accept the suggestion, or the implication that it somehow affected the reliability of her evidence. My sense was that Janice's only concern was to honour Jack's stated wish that Heather's share should go to her children.

(b) Margaret gave evidence that she visited Jack two or three days after he had signed the will on 30 March 2014. She said she clearly recalled Jack telling her that he had his solicitor re-write his will that he had just signed. He told her about signing the will at his older sister Barbara's house, and that Ron and Barbara had witnessed him sign the will. He then said words to the effect that he did not need to redo his will as the outcome was 'exactly the same as the previous will'.[11] She rejected the suggestion that she had somehow reconstructed this memory, as a result of later seeing and reading both wills. My impression was that she had a clear, independent memory of the conversation with her grandfather on about 1 April 2014.

27 Fourth, Mr Spottiswood's account of his instructions is consistent with other evidence of what Jack said about his testamentary intentions in later years.

(a) Janice recalled a conversation she and Ron had with Jack in about August 2015, after Helen had queried whether or why Heather's children were included in the will. Janice said that Jack was adamant that he wished Heather's share to go to her children, and that there was provision in his will for this to happen.

(b) Maurice said that he visited Jack in mid-August 2019. Maurice told his grandfather about a charity project he was involved with in the Philippines, which he had funded using part of his inheritance from his mother.[12] He also said that he wanted to honour his mother by supporting the project, as she had supported similar projects during her life. Maurice's evidence was that Jack then said words to the effect 'I've left your mum's share of my will to you children'.[13] The Executors conceded that Maurice was an 'arguably credible witness', and made no submission that his evidence should not be accepted. I found him to be an entirely genuine witness.

28 Finally, the instructions that Mr Spottiswood said he received from Jack are consistent with the disposition of Jack's estate in the penultimate will.

29 The only evidence that Jack expressed any different intention was given by Ruth. She related a conversation with her father in May or June 2019. Ruth said that the conversation was prompted by an unexpected telephone call from Janice, who had told her sternly that she needed to speak to her father and get him to change his will to include Heather's children. Ruth said that she spoke with Jack, who responded that he had changed his will and left his estate to his five children, and not to Heather's children. According to Ruth, Jack spoke of 'outsiders' interfering in his private business and said words to the effect of 'Sticking her bib in again'. He also said that Heather's children had already received three inheritances from their mother, father and stepfather, and so did not need any help from him. Ruth said that he told her 'This is the only inheritance you kids will get. They've already had theirs'.

30 I have difficulty accepting this part of Ruth's evidence, because aspects of it are inherently improbable.

(a) Both Ruth and Janice said they had very little to do with each other over the years, apart from occasional meetings at family gatherings. It would have made no sense for Janice to have approached Ruth about Jack's will, when she could have spoken directly to Jack, or alternatively asked her husband Ron to speak to his brother.

(b) In any event, Janice believed that Jack had made provision for Heather's children in the will.

(c) Heather's children had not, in fact, received three inheritances. They received nothing from their father, whose entire estate went to his third wife. Heather's estate went to her second husband, and it was only on his death that her children received any inheritance. That inheritance did not, of course, include any share of Jack's estate.

31 I note that Janice firmly denied making any approach to Ruth about Jack's will. To the extent that there is a conflict, I prefer Janice's evidence over Ruth's. It is notable that, unlike Ruth, Janice has no interest in the outcome of the proceeding, in the sense that she does not stand to benefit from the will. I have real doubts about the premise for the conversation that Ruth said she had with Jack in May or June 2019, and hence doubt whether the conversation occurred.

32 Even if the conversation did take place as related by Ruth, it would not affect my finding that at the time he made the will on 30 March 2014, more than five years earlier, Jack intended to give Heather's children her share of the estate. As mentioned above, the testator's intentions must be examined as at the date of the will. I accept Mr Spottiswood's evidence that this is what Jack instructed him to put in the will.

Does clause 5 of the will, upon its proper construction, carry out Jack's intention?

33 As discussed, clause 5 of the will does not carry out Jack's intention that Heather's children should receive the share of the estate that would have gone to Heather had she still been alive.[14]

If not, is that because the will does not give effect to Jack's will instructions?

34 It follows from these findings that clause 5 of the will does not give effect to the instructions given by Jack to Mr Spottiswood.

If so, should the will be rectified, and in what way?

35 The Executors accepted that, if I was satisfied that the will did not give effect to Jack's instructions, there was no reason not to rectify the will to achieve his intentions.

36 Initially, Peter sought an order that clause 5 of the will be rectified by inserting Heather's name in the first part of the clause, after Lynette. On reflection, he agreed with the Executors that it would be preferable to divide the estate into six equal parts, with one part to go to each of Jack's five surviving children, and the remaining part to be divided equally between Heather's children. I agree that approach is preferable, because it achieves greater clarity and certainty for both the Executors and the beneficiaries of the will.

37 I will make an order under s 31(1) of the Wills Act rectifying the will, by replacing clause 5 with the following clause:

My executors hold my estate UPON TRUST to divide it equally into six (6) parts as follows:

(a) one (1) such part to each of my five (5) children KENNETH JOHN SILVA, DAVID JAMES SILVA, JANET RUTH DASILVA, HELEN SAMUEL and LYNETTE DAWN BUDDEN; and

(b) one (1) additional part to the children of my late daughter HEATHER RAYMOND, MARGARET ANN RITTER, KATHERINE BROWN, MAURICE JAMES SCOTT and PETER KENNETH SCOTT, in equal shares.

38 Before making the order, I will ask the parties to confirm the correct name of each of Heather's children, for inclusion in the new clause 5.

39 I will hear the parties on the question of the costs of the proceeding.

[1] For clarity and convenience, I refer in this judgment to Jack Silva and members of his family by their given names. No disrespect is intended.

[2] [2004] VSC 537, [17] (citations omitted).

[3] Lockrey v Ferris (2011) 8 ASTLR 529, [68]; Chan v Valmorbida [2019] VSC 336, [46].

[4] Rawack v Spicer [2002] NSWSC 849, [31]; Chan v Valmorbida, [48].

[5] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-2; Evidence Act 2008 (Vic), s 140.

[6] Affidavit of Malcolm Francis Spottiswood dated 10 September 2020, [5] (Spottiswood affidavit).

[11] Affidavit of Margaret Ann Ritter dated 11 September 2020, [5].

[12] Maurice clarified that he had received that inheritance from his stepfather's estate, but regarded it as his mother's inheritance.

[13] Affidavit of Maurice James Scott dated 11 September 2020, [4].

[14] See [14]-[15] above.