Plaintiffs v Respondent

2 In 1996, Elizabeth instructed her solicitor, Mr John Natoli, in the preparation of her will. On 20 March 1996, Elizabeth executed her Will. The Will appointed Tasman as an executor of her will, along with Mark Luttrell and Ms Toleman (the Trustees).

3 When Elizabeth died, she and Tasman resided at a Property in East Doncaster in which she was a tenant in common in equal shares with her husband.

4 Clause 3 of the Will addressed Elizabeth's principal place of residence at the time of her death, which was the Property, as follows. The struck out and underlined text indicates amendments made to the typewritten text in pen:

3. I GIVE my interest in the rel real estate being my principal place of residence at the time of my death ('the property') to my Trustees upon trust for my husband TASMAN PERCY LUTTRELL for him to have the right to reside therein and/or receive the rent and profits therefrom for his lifetime, he being responsible for paying all rates and taxes levied on the property and keeping the property insured against loss or damage from fire storm and tempest and keeping the property in the same state of repair as at my death PROVIDED should my said husband wish to sell the property then my Trustees my may so sell the property and receive the net proceeds of such sale and invest the same in those types investments [sic] referred to in 5(a) hereof and my said husband shall receive the income from such investment for his lifetime

PROVIDED FURTHER should my said husband:

(i) predecease me; or

(ii) surviving me die and/or

(iii) fail to pay the rates and taxes and insurance on the property and keep it in the same state of repair as at my death then the property or the capital realised thereof and any undistributed income received therefrom shall pass to those persons referred to 4.2(a) [sic] hereof in the manner and proportions referred to in that clause.

5 It is useful to make one preliminary observation about the wording of the second proviso (which is introduced by the words 'PROVIDED FURTHER' in clause 3). The formatting of the words following roman numeral (iii) may suggest that they are all to be part of a paragraph which operates as an alternative to paragraphs (i) and (ii) preceding. However, the second proviso can only be read to have any real meaning if paragraph (iii) is understood to finish at the word 'death' and the words from 'then the property or the capital realised thereof...' are read as applying to all three paragraphs. This does not involve any change to the wording, but a reading of the second proviso as follows:

(i) predecease me; or

(ii) surviving me die and/or

(iii) fail to pay the rates and taxes and insurance on the property and keep it in the same state of repair as at my death

then the property or the capital realised thereof and any undistributed income received therefrom shall pass to those persons referred to 4.2(a) [sic] hereof in the manner and proportions referred to in that clause.

I GIVE DEVISE AND BEQUEATH the rest of my real and personal estate of whatsoever nature and wheresoever situate not otherwise hereby or by any Codicil hereto disposed of unto my Trustees to sell, call in and convert the same into money with power to postpone the sale calling in and conversion thereof for so long as they in their absolute discretion shall think fit without being liable for loss and to hold the nett proceeds of such sale calling in and conversion upon the following trusts:-

4.1 to pay all my just debts funeral and testamentary expenses and the costs and expenses of and incidental to the proving of this my Will and any Codicil thereto and the administration of my Estate and the whole of the duties or taxes of whatever kind payable in consequence of my death;

4.2 to hold the balance of the rest residue and remainder of my estate (herein called "my Residuary Estate") as follows:-

(a) my personal chattels as defined in Section 5 of the Administration and Probate Act 1958 and half of the rest of my Residuary Estate to my said husband TASMAN PERCY LUTTRELL absolutely PROVIDED HOWEVER should my said husband be unwilling or unable to take the same whether by reason of death or otherwise then this shall pass in accordance with 4.2(b) hereinafter;

(b) the other half of the rest of my Residuary Estate is to be invested as is hereinafter provided and to pay the income therefrom to my said husband TASMAN PERCY LUTTRELL for his lifetime and upon his death to pay the capital and any undistributed income to my nephews and nieces namely SHANNON LEE TOLEMAN, NATHAN ANTHONY JOHN TOLEMAN, GEORGINA ELIZABETH TOLEMAN, ERIN GEORGIA O'NEILL, KATE ELIZABETH O'NEILL, ANGELA CLARE O'NEILL and STEVE PIERRE DUVARY or the survivor of them alive at my death.

7 The effect of the cross-reference in clause 3 of the Will, set out above, to clause 4.2(a) is that when her husband Tasman died, the Property was to be dealt with in accordance with clause 4.2(a), pursuant to which the residuary estate including Elizabeth's share in the Property was gifted to Tasman. On his death Elizabeth's beneficiaries would receive no share in the Property.

8 The plaintiffs say that this does not reflect Elizabeth's intention that her husband would have a life interest in her interest in the Property and, when he died, her interest in the Property would be gifted to her nieces and nephews. This outcome could be achieved if the cross-reference in the Proviso to clause 3 of the Will was to clause 4.2(b) rather that clause 4.2(a). Accordingly, by summons filed on 25 August 2023, the plaintiffs applied for an order pursuant to s 31(1) of the Wills Act 1997 (Vic) for rectification of the Will that 'the reference in clause 3(iii) of the will to "clause 4.2(a)" be deleted, and be replaced with "clause 4.2(b)"'.

9 For the reasons that follow, I will order that the Will be rectified as sought.

Section 39 of the Wills Act does not apply

10 Before considering the principles relevant to the rectification of a will and the facts relevant to the application, it is appropriate to note, given the circumstances that Tasman died within 30 days of Elizabeth passing, the terms of s 39 of the Wills Act. That section relevantly provides:

Beneficiaries must survive testator by 30 days

(1) If a disposition is made to a person who dies within 30 days after the death of the testator, the will is to take effect as if the person had died before the testator.

(2) Subsection (1) does not apply if a contrary intention appears in the will.

(3) A general requirement or condition that a beneficiary survive the testator is not a contrary intention for the purpose of this section.

11 Section 52 of the Wills Act provides that the Act, other than certain specified sections which do not include s 39, 'applies only to wills made on or after the commencement of this section'. Section 52 commenced on 20 July 1998.[4] Accordingly, s 39 applies only to wills made on or after 20 July 1998. It does not, therefore, apply to Elizabeth's Will, which was made on 20 March 1996.

12 Section 31 of the Wills Act provides, relevantly:

(1) 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.

(2) A person who wishes to make an application for an order under sub-section (1) must apply to the Court within 6 months from the date of the grant of probate.

(3) The Court may extend the period of time for making an application if the Court thinks this is necessary, even if the original period of time has expired, but not if the final distribution of the estate has been made.

...

13 The underlying policy of s 31 is to ensure that a testator's intentions be given effect, where the will does not carry out those intentions for one of the two reasons specified in s 31(1), either because a clerical error was made, or because the will does not give effect to the testator's instructions.[5]

14 The phrase 'clerical error' is not defined in the Wills Act. In the context of the rectification of wills, the rectification power in s 20 of the Administration of Justice Act 1982 (UK) authorises rectification of a will if the testator's intentions have not been carried out as a consequence of 'clerical error'. There is English authority construing the concept of 'clerical error' relatively broadly,[6] including to the effect that a clerical error can arise if the solicitor preparing a will failed to delete a proviso.[7] The repetition of a clause from an earlier will which should have been deleted has also been regarded as a clerical error.[8]

15 In Marley v Rawlings, the House of Lords considered the question of rectification in a case where a husband and wife had instructed mirror wills to be prepared, but had each executed the other's will. The House of Lords held that, as a matter of principle, to effect a wholesale correction of the contents of the wills was a permissible exercise of the statutory rectification power.[9] The intention of the testators having been clear, the wills could be rectified by transposing the whole of the wife's will into the will signed by the husband.[10]

16 Lord Neuberger said, in relation to the question of what may constitute a clerical error (emphasis in bold added):[11]

The best judicial summary of the effect of the cases so far decided on section 20(1)(a) was given by Blackburne J in Bell v Georgiou [2002] EWHC 1080; [2002] WTLR 1105, para 8 (quoted in para 7-42 of Hodge on Rectification):

"The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert ... The remedy is only available if it can be established not only that the will fails to carry out the testator's instructions but also what those instructions were".

If, as a result of a slip of the pen or mistyping, a solicitor (or a clerk or indeed the testator himself) inserts the wrong word, figure or name into a clause of a will, and it is clear what word, figure or name the testator had intended, that would undoubtedly be a clerical error which could be rectified under section 20(1)(a). ...

17 Lord Neuberger observed that the expression 'clerical error' may have a narrow meaning 'limited to mistakes involved in copying or writing out a document', but that (bold emphasis added):[12]

... the expression is not one with a precise or well-established, let alone a technical, meaning. The expression also can carry a wider meaning, namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of, a document (save, possibly, to the extent that the activity involves some special expertise). Those are activities which are properly be described as "clerical", and a mistake in connection with those activities, such as wrongly filing a document or putting the wrong document in an envelope, can properly be called "a clerical error".

For present purposes, of course, "clerical error" is an expression which has to be interpreted in its context, and, in particular on the assumption that section 20 is intended to represent a rational and coherent basis for rectifying wills. While I appreciate that there is an argument for saying that it does nothing to discourage carelessness, it seems to me that the expression "clerical error" in section 20(1)(a) should be given a wide, rather than a narrow, meaning.

18 There is limited consideration of the concept of 'clerical error' in the context of rectification of wills in Australia, save that existing authority refers to the width of the concept of clerical error in England.[13] It has also been held that the introduction of a clause which is inconsistent with the testator's intention 'in circumstances in which the person drafting the will fails to apply his or her mind to its significance or effect' may be a clerical error.[14]

19 The rectification power under the Patents Act[15] which arises in the case of a 'clerical error', has been the subject of authoritative judicial consideration. While some case law indicates a relatively narrow concept of 'clerical error' in that context, applicable to errors in the mechanical processes of writing or transcribing, it has also been recognised by the High Court that there is some elasticity in the concept and that it can extend to inadvertent omissions.[16] Recent authority suggests that rectification may be available where a mistake arises from overlooking or erring in a word, in a process which is not purely a mechanical transcription process. In Fina Research SA v Halliburton Energy Services Inc, Moore J in the Federal Court observed that an error in the translation of a document involving erroneous overlooking of a word from the original when translating, or omission of or addition of a word in the translation, could constitute clerical error.[17] In that matter, Moore J did not accept that the English translation, which omitted any translation of certain words of the original document in German, involved a 'clerical error' because the translator was not called to give evidence about the translation. It was therefore not possible to conclude that it was an error rather than a deliberate choice as to how the relevant sentence should be translated.[18]

20 While the rectification authorities in the context of the Patents Act need to be treated with caution, given the different statutory context, they demonstrate that there is no fixed technical meaning of the term.

Principles governing the exercise of the s 31(1) power

The requirement that the Court be satisfied that the will failed to carry out the testator's intention

21 Turning to authority as to how the power in s 31(1) is to be exercised, it is useful to commence with the summary of the principles by Whelan J in Re Estate of Dyranda Judith Prevost:[19]

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.[20]

22 The deceased's intentions must be examined at the date of the will, not the date when the testator died.[21]

23 In Re Schoenmakers,[22] McMillan J observed:[23]

Before the power of rectification can be exercised, the court must be satisfied both that the will was so expressed that it fails to carry out the testator's intentions, and also what it was that the testator intended concerning the part of the will which is to be rectified.

24 Put another way, the Court must be satisfied as to:

(a) a negative proposition, that the testator did not intend the will to be in the terms in which it was expressed; and

(b) a positive proposition, that the testator intended the will to be in the form for which the plaintiff contends.[24]

25 Rectification is not lightly granted.[25] The Court is required to 'recognise the gravity of the task before it, and its consequences'.[26] The Court must, therefore, 'feel an actual persuasion that the testator's intentions are not given effect in the will before contemplating its rectification'.[27]

26 Commonly, an application for rectification involves resort to extrinsic evidence to assist in the interpretation of the will and determination of the testator's intentions.[28] Relevantly to the evidence in this case, in ANZ Trustees Ltd v Stanley Hamlet, Pagone J stated:

The evidence of the legal practitioner receiving a testator's instructions ... will often, if not always, be determinative. It is, however, essential that the Court be satisfied that the Will does not give effect to the testator's instructions and in forming that view "clear and convincing proof" is required.

...

It may be a rare case in which the evidence of the person receiving the testator's instructions will not be accepted as sufficient proof of what the testator intended or of the instructions given by the testator... .[29]

27 The solicitor who drew Elizabeth's Will was John Natoli, who was called to give evidence by the plaintiff trustees. He gave evidence that Elizabeth and Tasman were long-term clients of his. He had acted for them in relation to property transactions as well as preparation of wills and powers of attorney. He had first acted for Elizabeth in 1983, when she purchased the Property. The Property was registered solely in her name. Elizabeth had no children of her own and Tasman had two children from a previous relationship, Mark and Debra.[30]

28 Mr Natoli gave evidence that he received instructions in 1996 from Elizabeth and Tasman to prepare their wills. He recalled the dealings with them on this issue, but the will file was no longer in existence.[31] Mr Natoli stated the following in relation to the basis on which clauses 3 and 4 were included in the Will:[32]

The crux of the instructions received from Liz and Tas is that they wanted the survivor of them to have the benefit of the first person's estate, but wanted for their respective 'halves' to then pass to their chosen beneficiaries. In the case of Tas, his nominated beneficiaries were his children, Mark and Deborah [sic]. For Liz, her nominated beneficiaries were her nieces and nephews; namely Shannon Lee Toleman (Shannon), Nathan Anthony John Toleman, Georgina Elizabeth Toleman, Erin Georgia O'Neill, Kate Elizabeth O'Neill, Angela Clare O'Neill and Steve Pierre Duvary.

29 Mr Natoli said that at the time of discussing the wills with Elizabeth and Tasman, the Property was solely in Elizabeth's name, and was the residence for both of them. As far as he could recall, he discussed with Elizabeth and Tasman that if she predeceased him when the Property remained solely in her name, and she left the entirety of her estate to him, it would be for Tasman personally or him by his will to dictate how the Property and other assets would pass. There was a discussion of the possibility of transferring the Property into joint names, in which Mr Natoli explained that the survivor would then be the absolute owner of the Property and could determine how it would be dealt with. Mr Natoli said that there was 'concern, from both Liz and Tas, that if the survivor of them were to receive the entirety of the first person's estate, in particular the Property, whether it be via disposition under the will, or by operation of survivorship, that this could expose some risk in ensuring that their nominated beneficiaries would receive their share - as there would not be anything stopping the survivor dealing with the Property in a manner inconsistent with their joint understanding during their lifetime, or changing their will'.[33] As to the response to this discussion, Mr Natoli gave evidence that (emphasis added):[34]

To provide some security for the survivor of them, and also comfort in ensuring that the entitlements of their respective beneficiaries would be safeguarded, I then suggested the option of transferring the Property from Liz's sole name, to both Liz and Tas in their capacity as tenants in common in equal shares. To give their instructions the desired effect, I discussed creating life interests in favour of each other in what would be that person's interest in the Property at the time. The life interest would allow the survivor to have the benefit of the predeceased's interest in the Property to ensure they have the security of accommodation, and then, upon the passing of the survivor, the distinct shares of the Property would be directed to the chosen beneficiaries of Liz and Tas, respectively. I explained to Liz and Tas that given they were married, that there would be no stamp duty payable on the transfer. After discussing this through with Liz and Tas, they then instructed me to prepare the paperwork necessary to effect the transfer of the Property.

....

Although I cannot recall specifically, following my standard practice I would have discussed with Liz and Tas, with respect to any other assets held beyond the Property, that simply leaving the survivor of them a life interest would be considered unduly restrictive, and that it would be important to enable the survivor to have access to capital funds. After discussing this aspect, I was instructed to draft the wills so that half of the available assets, not including the Property, would pass to the survivor absolutely, and the other half would be subject to a life estate, with the survivor entitled to the income generated of that half, and upon the passing of the survivor, the fund would pass to the predeceased's nominated beneficiaries. ...

30 Mr Natoli gave evidence that the draft wills 'would have been typed by my secretary at the time' and that his standard practice was to provide handwritten instructions to his secretary who would type the will out, and he would review the typed draft and send it to the client for review. At a meeting with the client his practice was to read through and explain the effect of the will so as to satisfy himself that they understand the will before signing.[35]

31 His evidence was that Elizabeth and Tasman signed their wills, and a transfer of land for the Property to be held as tenants in common in equal shares, on 20 March 1996, and that the Property was registered in Elizabeth and Tasman's names as tenants in common from 25 March 1996.[36]

32 Finally Mr Natoli gave evidence as to what had occurred after Elizabeth passed away. Tasman was in aged care and not in a position to act in the administration of her estate, so Mark Luttrell and Ms Toleman were giving instructions. Mr Natoli gave evidence that on retrieving and re-reading Elizabeth's will he 'noticed a typographical error contained at clause (iii) of the will'.[37] He gave the following evidence:[38]

It is my belief, based upon my recollection and understanding of the instructions provided to me by Liz and Tas, and the instructions I conveyed to my secretary to type the will, that clause 3(iii) should have instead referred to clause 4.2(b) as being the destination of the predeceased's share in the Property upon one of the Determination Events occurring, not clause 4.2(a) (the Reference). The Reference appears in both Liz's will and Tas' will. It is an error in both wills as it does not align with Liz and Tas' instructions to me, nor my explanation of the operation of the wills to them.

33 Mr Natoli gave a number of reasons for this view, including that the effect of the will if it was not rectified would be that:[39]

... the order of Liz and Tas' deaths would determine whose nominated beneficiaries would receive a greater share of the Property. This is the very situation that Liz and Tas were at pains to avoid, and which underscored their instructions for the wills, my understanding of their instructions, the transfer of the Property, and my explanation of the wills to them when they signed the wills.

34 Mr Natoli was challenged in cross examination as to whether the cross reference in the Will to clause 4.2(a) was actually an error, noting that other errors had been identified and corrected in handwritten amendments. Mr Natoli gave evidence that the clients may not have referred to an error in the cross reference as they 'may have had confidence in the person who drew the document'.[40] Mr Natoli also accepted in cross examination that he could not be sure whether the error that he identified in the cross reference to clause 4.2(a) arose in his document setting out for his secretary what was to be typed, or whether she mistyped what he had given her, and gave evidence that however it arose 'the fault lies with me'.[41]

35 Ms Toleman also gave evidence, which was to the following effect. In or around late May 2022, while Elizabeth was moving into aged care, Ms Toleman had asked Elizabeth where she could find her personal documentation in the event anything needed to be done on her behalf. Elizabeth told Ms Toleman that her personal documents were stored in a filing cabinet in her spare room. Ms Toleman searched the filing cabinet and found a handwritten document, a copy of Elizabeth's signed Will, and two typed letters from A.B. Natoli Pty.[42] The first letter was dated 6 March 1996 and stated:

We refer to your instructions in relation to the above and now enclose copies of the following:

1. Wills

2. Statutory Declaration

3. Transfer

for your perusal.

If in order, please make an appointment to sign the same or your further advices.

36 The second letter was dated 25 March 1996 and stated relevantly:

Re: Transfer - 27 Worthing Avenue, East Doncaster & Wills

We refer to the above and now enclose copies of your Wills, the originals of which have been filed in our safe.

We are attending to the lodging of the transfer so that the title for the above property will stand in your names as tenants in common in equal shares.

...

37 The handwritten document was headed 'Will Details' and contained statements relating to how the estate was to be divided (Handwritten Note). Ms Toleman produced the Handwritten Note in her evidence.[43] Mr Natoli also gave evidence that Ms Toleman provided him with the Handwritten Note. He gave evidence that it was 'wholly consistent' with the proposed rectification, as the note contains instructions which are 'explicit in seeing distinct halves created, with one-half designated as being "Tas' share of estate", which was to be divided equally between Mark and Deborah, [sic] and the remaining one-half designated as "Liz's share", which was to be divided equally between Liz's named nieces and nephews'.[44]

38 The most relevant part of the Handwritten Note read as follows:

39 The plaintiffs, Mark Luttrell and Ms Toleman, submit that the Will, without rectification of the reference in clause 3 to clause 4.2(a), does not reflect the intention of Elizabeth (nor of Tasman who executed a will in materially the same terms at the same time). They submit that the result of the Will if it is not rectified would be to give Tasman's nominated beneficiaries, his son and daughter Mark and Debra, the whole of the Property, with no part passing to the beneficiaries nominated by Elizabeth in clause 4.2(b) of the Will, which was contrary to Elizabeth's intentions.[45]

40 The plaintiffs submitted in opening submissions that the reference to clause 4.2(a) in clause 3 was a clerical error and may be rectified pursuant to s 31(1)(a) of the Wills Act. In closing the plaintiffs submitted that both of the requirements in s 31(1)(a) as to a clerical error and in s 31(1) (b) as to the Will not giving effect to Elizabeth's instructions were satisfied, but that establishing one or other of those requirements was sufficient.[46]

41 The plaintiffs contend that the result of the unrectified Will is absurd, in that it first would create by clause 3 a limited life interest on the part of Tasman should he survive Elizabeth, but then by the proviso to clause 3, and the reference therein to clause 4.2(a), convert that to gift to him a complete interest in her share in the Property should he predecease her, die or fail to pay the rates and taxes and insurance on the Property.

42 The plaintiffs submit that the effect of the Will as drafted is inconsistent with the evidence as to Elizabeth's intentions as to how interest in the Property would be passed on, namely:

(a) Mr Natoli's evidence of what Elizabeth and Tasman told him in 1996 about their intentions with respect to their real and personal property, including the Property which was in Elizabeth's name alone at the time. Their expressed intentions were that their own named beneficiaries would receive their half interest in the Property, after the survivor of them enjoyed a life interest in the Property.[47]

(b) The Handwritten Note, which identifies the outcome that Elizabeth intended to achieve when her will was drafted.[48]

43 The respondent submits that the evidence put forward by the plaintiffs to demonstrate the intentions of the deceased does not establish Elizabeth's intentions, nor that the cross reference to clause 4.2(a) involved a 'clerical error'. It was submitted that Mr Natoli's evidence involves hearsay and guesswork as to what Elizabeth's instructions were, and was not clear and convincing evidence of the nature that was required.[49]

44 The respondent also submitted that the Handwritten Note did not provide the necessary evidence as there was no evidence as to whether it was prepared before or after the Will was made.[50]

45 The respondent submitted that the evidence did not establish a clerical error because it was possible that the reference to clause 4.2(a) in the second proviso in the drafting of both wills had been intended. Counsel for the respondent submitted that Elizabeth may have understood her Will and Tasman's will, (which was in the same form) and had accepted it, because it was advantageous to her if Tasman died before she did. It was said that Elizabeth may have intended this as Tasman, being 14 years older than her, may have been more likely to die first, with the result that she and her beneficiaries would take the Property absolutely, with no share going to Tasman's children Mark and Debra.[51]

46 The application for rectification was made by summons filed 25 August 2023, after probate was granted to the plaintiffs on 2 March 2023. The requirement in s 31(2) of the Wills Act that the application under s 31(1) be made within six months of the date of the grant of probate is, therefore, satisfied.

47 It remains to consider the substantive conditions for rectification pursuant to s 31(1), which are:

(a) whether the Court is satisfied that the Will does not carry out Elizabeth's intentions;

(b) whether the Will does not carry out Elizabeth's intentions because

(i) a clerical error was made; or

(ii) the Will does not give effect to Elizabeth's instructions; and

(c) whether the Will as rectified would carry out Elizabeth's intentions.

48 I am persuaded that the Will as it stands does not give effect to Elizabeth's intentions as to how her estate was to be distributed. I have concluded that Elizabeth's intention was that should she die before Tasman, he was to be able to continue to live in their residence until his death, but that after he died, her nieces and nephews were to be given her share of that residence.

49 This conclusion is based on Mr Natoli's evidence as to what he recalls having been told about Elizabeth and Tas's intentions that their respective family beneficiaries should benefit from their estate once they had both passed away. The conclusion is also based on the content of the Handwritten Note.

Mr Natoli's evidence as to Elizabeth's intention

50 I have described above the essential features of Mr Natoli's evidence. The central element of his evidence insofar as it relates to Elizabeth's intentions is his evidence of the meeting he had in early 1996 when Elizabeth and Tasman met with Mr Natoli to have him prepare their wills. Mr Natoli did not give detailed evidence of what was said in the meeting, but did give evidence as to the 'crux of the instructions' he received from them. I consider that evidence to be reliable and likely to be an accurate account of the essential elements of their intentions as to the content of their wills because:

(a) Mr Natoli had already acted for Elizabeth in the purchase of the Property, so had additional reason to recall matters relating to her and Tasman's intentions with respect to it;

(b) Mr Natoli's discussion of Elizabeth and Tasman's desire both to protect each other's security of accommodation following the death of one of them, but also to ensure that their nominated beneficiaries could ultimately receive a share of their estate, were rational concerns that might readily be remembered, and accord with the structure of the Will and the associated transfer of the Property into joint names;

(c) The additional element of the proposed response to Elizabeth and Tasman's expressed intentions, of the Property being transferred to be held in both names so that it could be dealt with in equal shares and allow the survivor to have some security, was a further reason why Mr Natoli would recall the instructions and the proposed solution discussed in the meeting, given that it went beyond simply preparing the wills for each of Elizabeth and Tasman.

51 The effect of the matters discussed at the early 1996 meeting, as described in Mr Natoli's affidavit, was that Elizabeth and Tasman each wanted to ensure that the survivor could benefit from the deceased partner's estate while they were alive, but then on the surviving partner's death their respective halves of the Property would pass to their own beneficiaries. They plainly intended that upon their death, the other would retain a life interest in the Property enabling them the security of a home, but also that when the other died, they would not have the ability to pass the entire Property on to their own chosen beneficiaries but that each person's half would then pass on to their respective beneficiaries.

52 The evidence given by Mr Natoli as to what he would have explained to Elizabeth and Tasman, although supported by his evidence as to what his usual practice would be, is less easy to accept as an account of what occurred on the day that the wills were signed. It was many years ago and it is unclear to what degree a 'practice to read through the will ... and explain the provisions' would necessarily have resulted in the specific explanation as set out in his affidavit.[52] However, I do not consider that this aspect of his evidence is central to establishing what Elizabeth's intentions or instructions were. The most important part of the evidence for that purpose is what was discussed prior to drafting the Will, as to the outcomes that Elizabeth wanted with respect to the distribution of her estate. I am satisfied for the reasons above that Mr Natoli's evidence as to what Elizabeth and Tasman told him should be accepted.

The admissibility of the Handwritten Note and the effect of the note

53 The Respondent raised the question of admissibility of the Handwritten Note, but ultimately did not object to its admission into evidence. The Respondent accepted the document could be admitted pursuant to s 36 of the Wills Act, but submitted that little weight should be given to it, given that the purpose of the document was unclear, for example whether it was intended to be the basis of her will or was prepared for a different purpose such as to change her will.[53]

54 Section 36 of the Wills Act provides:

When is evidence admissible to clarify a will?

(1) In any proceedings to construe a will, if the language used in a will renders the will or any part of the will -

(a) meaningless; or

(b) uncertain or ambiguous on the face of the will; or

(c) uncertain or ambiguous in the light of surrounding circumstances -

evidence may be admitted to assist in the interpretation of that language.

(2) Evidence which may be admitted under subsection (1)(c) does not include evidence of the testator's intention.

(3) Nothing in this section prevents the admission of evidence which would otherwise be admissible at law in any proceedings to construe a will.

55 I consider that the document may be admitted pursuant to s 36(1)(b) on the basis that the language of the Will discloses an ambiguity on its face, in that the second proviso to clause 3, and the reference therein to clause 4.2(a), involves an irrational outcome of creating a limited life interest in the Property on the part of Tasman should he survive Elizabeth, but a complete interest of that share to him, or necessarily his estate, should he predecease her. That gift of a complete interest rather than a life interest would also arise, by reason of clause (iii) of the Second Proviso, if Tas failed to pay the rates, taxes and insurance on the Property and maintain it in the same state of repair at Elizabeth's death. To provide for the more favourable gift of a complete interest where Tas fails to maintain and pay amounts due on the property than if he does discharge that responsibility is not an outcome that could rationally have been intended.

56 I infer that the Handwritten Note was prepared by Elizabeth Luttrell. This inference arises strongly from the following:

(a) the circumstances in which the document was found - having been located in a filing cabinet in Elizabeth Luttrell's home, which is where she had told her niece Ms Toleman that she held her personal documents;[54] and

(b) the terms of the document, which are consistent with it having been written by Elizabeth, in particular in the statements, on the second page of the document after the extract above:[55]

I wish that the money my nieces & nephews receive from my share of the estate be invested for 5 years after my death.

If I die before Tas I wish my sister Fran Tas to dispose of my clothes - first offer to my sister Angela.

57 I accept that it is relevant to consider, as submitted for the respondent, that not all of the information contained in the Handwritten Note is reflected in the contents of the Will. For example, there were some statements relating to personal property, including a list of 'Liz's jewellery' and names of a person against each item. Jewellery was not specifically the subject of the Will. Also, there were other matters expressed as 'wishes' (including for example the statements in the preceding paragraphs) which were not reflected in the Will. However I consider that the inclusion of these items in the Handwritten Note, but not reflected in the terms of the Will, does not preclude a conclusion that the information as to how 'the estate' was to be dealt with, on the first page of the Handwritten Note and extracted at [38] above, reflected the primary instructions to be achieved by the Will. The other matters relate primarily to personal effects or 'wishes' as to how income, personal effects or pets would be dealt with and may not have been intended to be committed to the terms of the Will. Mr Natoli gave evidence that it was his usual practice with respect to specific gifts to 'recommend to clients that they leave a list which may give directions regarding specific items in their estate - this with the caveat that it would not be legally binding, rather just a guide for the executors at the time.'[56]

58 I find that the Handwritten Note is evidence of Elizabeth's intentions at the time of making the Will, and that it was not made later.[57] I infer this because of the reference to the address of 'Natoli A.B. Pty' and the phone number at the top of the page, and the heading 'Will details'. The fact that the Handwritten Note was found with letters from A.B. Natoli Pty dated in March 1996 referring to both the draft and executed wills, and also a signed copy of the Will, also is a sufficient basis in my view to infer that the Handwritten Note was prepared to facilitate the drafting of the Will at that time. There is nothing in the terms of the Handwritten Note, nor in the circumstances in which the note was identified, that supports the possibility, raised by the respondent, that the document may have been prepared afterwards in relation to some intention to change the Will.

59 There is also nothing to support the submission that Elizabeth may have intended her Will and Tasman's will, which was in the same form and also contained the reference to clause 4.2(a) in the Second Proviso to clause 3, to take that form, because if Tasman predeceased her, she and her beneficiaries would take the Property absolutely, with no share going to Tasman's children. This would be entirely inconsistent with the intentions expressed in Elizabeth's Handwritten Note and would involve me inferring that she countenanced a different outcome because it may provide a greater benefit to her than the sharing of the Property amongst her and Tasman's beneficiaries equally. There is nothing in the evidence to support such an inference.

Was the reference to clause 4.2(a) rather than clause 4.2(b) a clerical error?

60 Mr Natoli's evidence referred to the inclusion in clause 3 of a reference to clause 4.2(a) as a 'typographical error'.[58] I accept that the reference was an error, given the irrationality of the outcome and the extent of the departure from Elizabeth's expressed wishes. However, the evidence did not establish whether the error arose from a transcription error from Mr Natoli's secretary typing the Will from his handwritten draft which contained the correct reference, or whether it was an error made by Mr Natoli when drafting the Will. The file no longer existed, and no draft will had been held with the will packet, so no evidence of the handwritten draft was available. If it was an error of the former kind, made by Mr Natoli's secretary, it can be readily accepted that it was a clerical error, being an error made in the course of the mechanical process of transcription[59] or the preparation of the typewritten document from a primary handwritten source.[60]

61 However, if the error was one made by Mr Natoli in the course of drafting the Will, there is a question as to whether it is properly called a 'clerical' error. In Marley v Rawlings Lord Neuberger, concluded that given the purpose of the statutory rectification power, being to provide a rational and coherent basis for rectifying wills, the term 'clerical error' should be given a wide, rather than a narrow meaning.[61] However, he also specifically acknowledged a qualification to the wider meaning of 'clerical error', noting that it may encompass 'a mistake arising out of office work of a relatively routine nature, such as preparing ... a document (save, possibly to the extent that the activity involves some special expertise)'.[62] The preparation of the draft Will by Mr Natoli undoubtedly involved some special expertise. However it was recognised in Marley v Rawlings itself that an error in the drafting process by a solicitor, including the insertion of something that the solicitor did not intend to insert, or the omission of something he or she did not intend to omit, would constitute a clerical error.[63]

62 In the present case, the error in referring to clause 4.2(a) rather than clause 4.2(b) in clause 3, if made in the original drafting by Mr Natoli, would constitute a clerical error, notwithstanding that it was made by Mr Natoli, a solicitor. It is plain from his evidence that the cross reference was a mistake and not the result of a deliberate choice.[64] Although an unfortunate error, given the consequences, the incorrect cross reference involving one letter in the paragraph identifier can be regarded as an error arising in connection with the more routine aspects of drafting. I am satisfied that it can properly be characterised as a clerical error for the purposes of s 31(1)(a).

63 However, even if I am wrong in this conclusion, I also conclude, as discussed below, that the Will does not carry out Elizabeth's intentions because it does not give effect to her instructions. This satisfies the requirement of s 31(1)(b), so that the rectification power is open to the Court on that basis also.

Did the Will give effect to Elizabeth's instructions?

64 As discussed in paragraphs [50] and [51] above, I have accepted Mr Natoli's evidence as to what he was told by Elizabeth and Tasman in a meeting in early 1996 about their intentions as to how their estates should be distributed after their death. I also find that the Handwritten Note contains Elizabeth's notes as to how she wanted the Property and her residual estate to be dealt with. I am satisfied that the information given in the March 1996 meeting by Elizabeth, and the Handwritten note, reflect her instructions as to what she wanted her will to provide. They were apparently given in layperson's terms but were clear as to the intention. Those instructions were that:

(a) Tasman would, if she predeceased him, receive her estate including her share of the Property for his lifetime; and

(b) when Tasman died, Elizabeth's estate including her half share of the Property should be divided between her nieces and nephews.

Does the proposed rectification reflect Elizabeth's intentions?

65 I am also satisfied that the proposed rectification would give effect to Elizabeth's intentions as to how the Property was to be dealt with in the event of her pre-deceasing Tasman. If the reference in the second proviso to clause 4.2(a) is rectified to read as a reference to clause 4.2(b), the result will be that in the event of Tasman predeceasing her, or dying after surviving her, her half of the property or the capital realised from it will pass to her nieces and nephews who she had, in clause 4.2(b), identified as beneficiaries.

66 Again this accords with her intentions as discussed with Mr Natoli, and as recorded in the Handwritten Note, that her nieces and nephews should benefit from her half share in the Property. This meant that if Tasman survived her, he would first enjoy a life interest in the estate including the Property during his lifetime, in accordance with the first part of clause 4.2(b), and upon his death they would receive her half of the Property.

67 For the above reasons, I am persuaded that the Will should be rectified to give effect to Elizabeth's intentions. The Will should be rectified as follows:

The reference following clause 3(iii) of the Will to 'clause 4.2(a)' is deleted and is replaced with the words 'clause 4.2(b)'.

68 The parties made submissions on the appropriate costs orders in the event of the rectification application succeeding, or being dismissed.[65] It is, therefore, appropriate to address the issue of costs without a further hearing.

Principles on costs in the context of rectification of a will

69 Pursuant to s 24(1) of the Supreme Court Act 1986, costs are in the discretion of the Court. The understanding that the usual order as to costs follows the event has some application to an application to rectify a will, but there are other important considerations which must be taken into account. This includes the position established by rule 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 that a party who sues or is sued as an executor as trustee of an estate is entitled to costs of the application out of the estate insofar as they are not paid by any other person.[66] A trustee for the purposes of this rule is defined to include the executor of a will.[67]

70 In Hamlet, the executor was unsuccessful in a rectification application. Justice Pagone observed that the executor had 'quite properly' not sought an order for the costs of that application. His Honour held that the executor should pay the costs of all the defendants on the ordinary basis.[68] In obiter dicta, his Honour stated that, even if the plaintiff's application was successful, he would have ordered that the executor plaintiff was to pay the defendants' costs. First, the construction of the will in that case was a matter for which the Court should have a contradictor. Secondly, it was important to test evidence as to the deceased's instructions. Thirdly, the executor's drafting of the will gave rise to the need for the proceeding.[69]

71 In Schoenmakers (No 2), an executor unsuccessfully opposed a beneficiary's rectification application. The beneficiary sought an order for costs payable by the executor rather than out of the estate, which would effectively involve costs being paid in part by the beneficiary.[70] Justice McMillan observed that the need for the rectification application arose from a drafting error by the executor, but that costs were exacerbated by the executor's opposition to that application.[71] Accordingly, the executor should pay the beneficiary's costs personally, not out of the estate, and was not entitled to be indemnified from the estate for their own costs.[72]

72 In Re Mirabella (No 2),[73] Justice O'Meara, having accepted that a will should be rectified on the application of the executor of the will, recognised that it was appropriate for the beneficiary who had unsuccessfully opposed rectification to recover costs. His Honour took into account that the beneficiary did not act unreasonably in opposing the rectification application, and accepted that it was appropriate that the solicitor's evidence was tested by cross examination and the beneficiary had cooperated with the executor to ensure the case was presented efficiently.[74] In that case, the parties sought costs against the solicitor who had drafted the will, and O'Meara J ordered, after a hearing in which the solicitor was represented, that he pay the costs of the executors and the beneficiary.[75]

73 The respondent sought an order that her costs are to be paid out of Elizabeth's estate, regardless of the outcome of the plaintiffs' application.[76] It was submitted that this was appropriate as the Will was uncertain; it was appropriate to have a contradictor in this matter; and the plaintiffs refused to participate in a mediation.[77] The respondent did not seek an order for costs against Mr Natoli's firm personally.

74 The plaintiffs submitted that the ordinary course in rectification matters is for the solicitor who drafted the Will to pay the plaintiff's costs of the rectification application if that application was successful.[78] Counsel for the plaintiffs submitted that Mr Natoli, who was a principal of the instructing firm,[79] did not resist paying the plaintiffs' costs of the application.[80] The plaintiffs contended that the respondent's participation in the proceedings had put them to additional costs, and sought orders that:

(a) Mr Natoli is to pay the costs of the plaintiffs' application until the date on which the respondent joined the proceeding;

(b) the respondent is to pay the plaintiffs' costs from the date on which the respondent joined; and

(c) the respondent is to bear her own costs.[81]

75 The plaintiffs submitted that the involvement of the respondent was unnecessary, as the application was a 'black and white issue' of construction. They also rejected the defendant's submission that their costs should be paid out of the estate because the plaintiffs had refused to mediate, submitting that as the solicitor was paying the costs of the application the plaintiffs' participation in mediation could bring them into a conflict with their solicitor.[82]

76 It was, in my view, appropriate for the respondent to appear and make submissions contradicting the application for rectification. The respondent was an interested person, being a beneficiary whose interest under the unrectified Will would be detrimentally affected by the rectification orders sought. She was identified as such in the orders of Judicial Registrar Keith made 4 December 2023. She was joined to the proceeding by those orders. I do not accept that the involvement of the respondent as contradictor gave rise to unnecessary work or hearing time so I do not accept that the involvement of the respondent put the plaintiffs to additional unnecessary cost.

77 Although the respondent was ultimately unsuccessful in the application for rectification, it was appropriate to have a contradictor for the application, or at least to ensure that the respondent's interests were represented and that she was able to test the material in support of the rectification application. In these circumstances I accept the submission of the respondent that it is appropriate that the respondent's costs be borne by the estate. It is also appropriate that the plaintiffs' costs be borne by Mr Natoli or his firm A.B. Natoli.

78 I will make orders accordingly and will hear the parties as to the precise form of order.

[1] Affidavit of John Francis Natoli sworn on 10 July 2023 (Natoli Affidavit), Exhibit JFN-1, 16.

[2] Natoli Affidavit, Exhibit JFN-1, 17.

[3] Orders of Keith JR made 4 December 2023, Order 1.

[4] Victoria, Gazette: General, No G 28, 16 July 1998.

[5] ANZ Trustees Ltd v Stanley Hamlet & Ors [2010] VSC 207, [2] (Pagone J).

[6] Marley v Rawlings [2014] UKSC 2; [2015] AC 129, [75]-[79] (Lord Neuberger, with whom Lords Clarke, Sumption and Carnwath agreed).

[7] In Re Segelman (dec'd) [1995] 3 All ER 676.

[8] Wordingham v Royal Exchange Trust Co Ltd [1992] 2 WLR 496.

[9] Administration of Justice Act, s 20(1), which provided at the time 'If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence - (a) of a clerical error or (b) of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions.' See Marley v Rawlings, 146, [29].

[10] Marley v Rawlings, 150, [52]-[54] (Lord Neuberger, with whom Lords Clarke, Sumption and Carnwath agreed).

[11] Marley v Rawlings, 153_,_ [71]-[72] (Lord Neuberger, with whom Lords Clarke, Sumption and Carnwath agreed).

[12] Marley v Rawlings, 153-154, [75]-[76].

[13] Reeves v Reeves [2024] NSWSC 134, [421]-[428] (Meek J).

[14] In the Estate of Trevor William McMahon (deceased) [2022] QSC 236, [20] (Cooper J), citing the observation in Marley v Rawlings at [71] that a clerical error may occur when someone, including the testator's solicitor, writes something in the will which he or she did not intend to insert or omits something which he or she intended to insert.

[15] Section 117 of the Patents Act 1903-1950 (Cth) provided 'The Commissioner may on request in writing accompanied by the prescribed fee correct any clerical error in the Register of Patents or in any proceedings under this Act, but no fee shall be required in respect of any correction necessitated solely by error in the Patent Office'.

[16] R v Commissioner of Patents; ex parte Martin [1953] HCA 67; (1953) 89 CLR 381, 395 (Williams ACJ); 406 (Fullagar J, Kitto and Taylor JJ agreeing).

[17] [2003] FCA 251; (2003) 127 FCR 561, 568 [18] (Moore J).

[18] Fina Research, 569-570, [22]-[23].

[19] [2004] VSC 537.

[20] [2004] VSC 537, [17] (footnotes omitted). Cited with approval in: Re Estate of Sillitoe [2024] VSC 37, [29] (O'Meara J); Re Silva; Scott v Silva [2022] VSC 397, [9] (Richards J); Chan v Valmorbida: In the Matter of the Will of Adrian Valmorbida [2019] VSC 336, [45] (Daly AsJ); In the matter of the Will and Estate of Ada Margaret Dyer, deceased [2017] VSC 341, [18] (Ierodiaconou AsJ); Re Schoenmakers [2013] VSC 556, [37] (McMillian J); Hamlet, [14] (Pagone J); Re Hawkes [2005] VSC 93, [14] (Habersberger J).

[21] Re Silva, [10] (Richards J); Estate of Ada Margaret Dyer, [19] (Ierodiaconou AsJ); Re Estate of Sillitoe, [30] (O'Meara J).

[22] [2013] VSC 556, [38].

[23] [2002] NSWSC 849, [26].

[24] Re Schoenmakers, [39] (McMillan J), quoting Long v Long [2004] NSWSC 1002, [9] (Barret J).

[25] Re Estate of Catherine Nolan [2004] NSWSC 1191, [26] (Young CJ).

[26] Re Estate of Sillitoe, [30] (O'Meara J), quoting Valmorbida, [46]-[48] (Daly AsJ). See also Re Silva, [11] (Richards J).

[28] Valmorbida, [19]-[24] (Daly AsJ).

[31] Transcript 18/06/24 T7-8. The will packet containing the wills also did not include any file notes: T8.15-24.

[36] Natoli Affidavit, [20], [24], [27].

[42] Affidavit of Shannon Lee Toleman sworn 13 June 2024 (Toleman Affidavit), [4]; Exhibit SLT-1, 1-5.

[43] Toleman Affidavit, Exhibit SLT-1, 1-3.

[44] Natoli Affidavit [17], [31(i)].

[45] Plaintiffs' Submissions for the Application by Summons for the Rectification of the Will, filed 27 May 2024, [11]-[15], [24]-[25].

[46] Plaintiffs' Submissions, [23]; Transcript 18/06/24 T26.03-11.

[48] Plaintiff's Submissions, [25](b).

[49] Respondent's Submissions filed 11 June 2024 [4]-[16]; Transcript 18 June 2024, T4.06-.20; T39.19-27.

[50] Transcript T41.30-T42.07; T43.25-T44.02.

[52] Natoli Affidavit, [21] and [22].

[55] Toleman Affidavit, Exhibit SLT-1, page 2.

[57] It also refers to how Tasman's share of the estate and some of his personal effects (his guns) should be distributed: Exhibit SLT-1 page 2. The document may, therefore, also reflect Tasman's intentions. However it is unnecessary to decide that point, as no issue about the distribution of his personal effects arises. Insofar as his intentions with respect to the Property are relevant, his wishes as expressed to Mr Natoli in the meeting in early 1996 are the subject of Mr Natoli's evidence.

[59] R v Commissioner of Patents; ex parte Martin [1953] HCA 67; (1953) 89 CLR 381, 406 (Fullagar J, Kitto and Taylor JJ agreeing).

[61] Marley v Rawlings, 153-154 [76].

[64] As was the case in In the Estate of Trevor William McMahon (deceased) [2022] QSC 236, [20] (Cooper J), referring to an error arising where the person drafting the will fails to apply his or her mind to the significance or effect of the relevant wording. Cf the possibility in Fina Research where a deliberate choice on the part of the translator to omit the words could not be excluded, as he was not called to give evidence. Fina Research, 569-570, [22]-[23].

[65] Transcript 18/06/24 T47.05-T51.06.

[66] The Trust Company (Australia) Limited v Schoenmakers [2013] VSC 658 (Schoenmakers (No 2)), [6]-[7] (McMillan J).

[67] Supreme Court (General Civil Procedure) Rules 2015, r 63.01.

[70] Schoenmakers (No 2), [21] (McMillan J).

[71] Schoenmakers (No 2), [24] (McMillan J).

[72] Schoenmakers (No 2), [25] (McMillan J).

[73] [2023] VSC 473.

[74] [2023] VSC 473, [68]-[76] (O'Meara J).

[75] [2023] VSC 473, [4], [6], -[59], [76] (O'Meara J). The solicitor was ordered to pay only the costs on a standard basis, with costs beyond that to the indemnity basis to be paid from the estate.

[78] Transcript 18/06/2024, T47.21-.25.

[80] Transcript 18/06/2024, T47.26-.28. It was not made clear whether this was to be personally or by the firm of which Mr Natoli is principal, A.B. Natoli. I will give the plaintiffs the opportunity to address this before final orders are made.

[81] Transcript 18/06/2024, T47.18-T49.3. The plaintiffs' counsel also submitted, in the alternative, orders that (a) 25% of the plaintiffs costs are to be paid Mr Natoli and 75% by the defendant or (b) an order that Mr Natoli and the defendant should pay the plaintiffs' costs in equal shares: Transcript 18/06/2024, T49.4-.10.

[82] Transcript 18/06/2024, T49.29-T50.12.