Rawack v Spicer

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

4461/01 MICHAEL KENNETH RAWACK v WALLACE SPICER & 6 ORS JUDGMENT HIS HONOUR: The Testator's Will 1 The late Hilde Tonn died on 7 July 1994. Her last Will was made on 1 May 1991. The testatrix revoked previous wills, and appointed her sister-in-law, Viola Spicer, and her solicitor Michael Kenneth Rawack as executors and trustees. The dispositive provisions of the Will were as follows: " 5. I GIVE DEVISE AND BEQUEATH my realty being Strata Title Home Unit premises situate at and known as Unit 7A, 45 Ocean Avenue, Double Bay in the State aforesaid TOGETHER with all furniture furnishings and other household effects therein contained UNTO my Trustees UPON TRUST :- (1) To permit my friend ERICH SOMMER (Also known as ERIC SOMMERS ) to reside therein during his lifetime and to have the use of the furniture furnishings and other household effects therein contained for so long as:- (a) He shall be able to care for and look after himself; and (b) He shall remain single and shall not enter into a de facto relationship; he keeping the said realty furniture furnishings and other household effects in good repair and insured in the names of my Executors in the office and in a sum approved by them and him paying all rates, taxes and outgoings, including maintenance levies and insurance in connection therewith in respect of the said Strata Title realty and the furniture furnishings and other household effects contained therein and he keeping the said home unit and furniture furnishings and other household effects in good repair having regard to the condition thereof at my death. (2) The said right of residence hereinbefore referred to shall be determined upon the happening of one (1) or more of the following contingencies:- (a) Upon the death of the said ERICH SOMMER (Also known as ERIC SOMMERS ); or (b) Upon the said ERICH SOMMER relinquishing his rights of residency voluntarily; or (c) him marrying or entering into a de facto relationship; or (d) The said ERICH SOMMER in the opinion and absolute unfettered discretion of my Trustees being unable and/or incapable of properly looking after himself. (3) Upon the happening of any such contingency as aforesaid the right of residence above referred to shall determine and the realty and personalty hereinbefore referred to shall revert to my Trustees and be dealt with in accordance with the subsequent provisions of this my Will. 6. I DIRECT that upon termination of the right of residence given by this my Will to the said ERICH SOMMER that the said realty together with all furniture furnishings and other household effects therein and upon the said realty hereinbefore referred to shall accrue and revert to my Trustees UPON TRUST :- (a) To call in sell and convert into money such part or parts of my Estate as shall not consist of ready money with full power in their absolute discretion to postpone such calling in sale or conversion of the whole or any part thereof for such periods as they shall in their absolute discretion think fit and without being liable for any loss thereby incurred. (b) To empower my Trustees to have full discretionary power to permit any part of my Estate which shall be invested at my death to remain in the same state of investment although not trust investment for such period or periods as my Trustees shall think fit. (c) To invest the proceeds of such calling in sale and conversion in such manner as my Trustees may in their absolute discretion think fit and whether in authorised trust securities or not and in all respects as if they were the beneficial owners thereof. (d) To pay my just debts funeral and testamentary expenses probate death and Estate duties of every kind (if any) and any other debts payable as a result of or in consequence of my death. (e) to divide the net residue into three (3) equal parts and pay one (1) such equal part to each of the following beneficiaries:- (i) As to one (1) such equal part to my friend ERICH SOMMER (Also known as ERIC SOMMERS ) of Unit 7A, 45 Ocean Avenue, Double Bay in the State aforesaid for his sole use and benefit absolutely. (ii) As to another one (1) such equal part to my sister RUTH DECKERT of 1A Aubrey Street, Stanmore in the State aforesaid for her sole use and benefit absolutely. (iii) As to the remaining one (1) such equal part for my brother WALLACE SPICER of 7 Nicol Avenue, Maroubra in the State aforesaid for his sole use and benefit absolutely. PROVIDED that in the event of either my friend the said ERICH SOMMER (Also known as ERIC SOMMERS ) or my sister the said RUTH DECKERT predeceasing me or failing to survive me for a period of one (1) calendar month from the date of my death or dying after my death THEN such bequests to my friend ERICH SOMMER or my sister RUTH DECKERT shall lapse and the same shall accrue to and be paid by my Trustee to my brother WALLACE SPICER for his sole use and benefit absolutely PROVIDED FURTHER that in the event of my brother the said WALLACE SPICER predeceasing me or dying within one (1) calendar month from the date of my death THEN all such entitlements under this my Will as shall have accrued to him shall accrue to my sister-in-law VIOLA SPICER for her sole use and benefit absolutely PROVIDED FURTHER that in the event of my sister-in-law VIOLA SPICER predeceasing me or dying within one (1) calendar month from the date of my death leaving issue her surviving who shall survive me THEN such issue shall take and if more than one (1) as tenants in common in equal shares the entitlements under this my will that his her or their mother would have taken had she survived me. 7. I GIVE DEVISE AND BEQUEATH all the rest and residue of my personal estate of whatsoever nature and kind and wheresoever situate to which I shall be entitled to or over or in relation to which I shall have any power of disposition at the time of my death UNTO my Trustees UPON TRUST as follows:- (a) To call in sell and convert into money such part or parts of my Estate as shall not consist of ready money with full power in their absolute discretion to postpone such calling in sale or conversion of the whole or any part thereof for such periods as they shall in their absolute discretion think fit and without being liable for any loss thereby incurred. (b) To empower my Trustees to have full discretionary power to permit any part of my Estate which shall be invested at my death to remain in the same state of investment although not trust investment for such period or periods as my Trustees shall think fit. (c) To invest the proceeds of such calling in sale and conversion in such manner as my Trustees may in their absolute discretion think fit and whether in authorised trust securities or not and in all respects as if they were the beneficial owners thereof. (d) To pay my just debts funeral and testamentary expenses probate death and Estate duties of every kind (if any) and any other debts payable as a result of or in consequence of my death. (e) To divide the net residue into three (3) equal parts and pay one (1) such equal part to each of the following beneficiaries:- (i) As to one (1) such equal part to my friend ERICH SOMMER (Also known as ERIC SOMMERS ) of Unit 7A, 45 Ocean Avenue, Double Bay in the State aforesaid for his sole use and benefit absolutely. (ii) As to another one (1) such equal part to my sister RUTH DECKERT of 1A Aubrey Street Stanmore in the State aforesaid for her sole use and benefit absolutely. (iii) As to the remaining one (1) such equal part for my brother WALLACE SPICER of 7 Nicol Avenue, Maroubra in the State aforesaid for his sole use and benefit absolutely. PROVIDED that in the event of either my friend the said ERICH SOMMER (Also known as ERIC SOMMERS ) or my sister the said RUTH DECKERT predeceasing me or failing to survive me for a period of one (1) calendar month from the date of my death or dying after my death THEN such bequests to my friend ERICH SOMMER or my sister RUTH DECKERT shall lapse and the same shall accrue to and be paid by my Trustees to my brother WALLACE SPICER for his sole use and benefit absolutely PROVIDED FURTHER that in the event of my brother the said WALLACE SPICER predeceasing me or dying within one (1) calendar month from the date of my death THEN all such entitlements under this my Will as shall have accrued to him shall accrue to my sister-in-law VIOLA SPICER for her sole use and benefit absolutely PROVIDED FURTHER that in the event of my sister-in-law VIOLA SPICER predeceasing me or dying within one (1) calendar month from the date of my death leaving issue her surviving who shall survive me THEN such issue shall take and if more than one (1) as tenants in common in equal shares the entitlements under this my Will that his her or their mother would have taken had she survived me." The Factual Background to the Testatrix's Will 2 The testatrix was born on 21 May 1916 and so was 78 years old at the time of her death. She was born in Germany. In 1936 she married her husband, Gerhardt, in Germany. In 1938 she and Gerhardt migrated to Australia. Her siblings were Ruth Deckert (born 21 August 1914), Ursula Sturm (born 22 May 1918), and Wallace Spicer (born 2 April 1930). Of these siblings, Mr Spicer was the only one who had children of his or her own. He had three daughters. Those daughters were adult at the time the testatrix made her Will - at the time of trial, roughly 11 years after the Will was made, the daughters were aged 50, 42 and 40. All the testatrix's siblings survived her. 3 In 1947, Mr Spicer migrated to Australia, under the testatrix's sponsorship. He would have been aged 17 or thereabouts at that time. He lived with the testatrix for about four years, until 1951, when he married. He and his wife, Viola, have three children. The testatrix ran a business of making lingerie, and, subsequently, hats. She ran this business from the time she came to Australia, until soon after the death of her husband. Mr Spicer assisted in that business during the time he was living with the testatrix, and for about a year after he married. There is evidence, that, continually, the testatrix was in close contact with her sisters, her brother, and her sister-in-law. 4 The testatrix's husband died in 1966. Around 1970 she began a relationship with Eric Sommers. Mr Sommers moved into the testatrix's home unit around 1971, and lived there continually thereafter. Mr Sommers had, so far as the evidence discloses, no close family, and in particular no children. 5 The testatrix's assets at the time of her death consisted of her home unit (unit 7A, 45 Ocean Avenue Double Bay), the furniture and household goods located in that home unit (valued for probate purposes at $5,660), and a little over $300,000 worth of other assets. 6 Mr Sommers survived the testatrix. He died on 19 October 1999. He continued to live in the testatrix's home unit until the time he died. 7 The testatrix's first language was German. Throughout the time she lived in Australia, she regularly spoke German with her family and friends. She knew enough English to be able to get by in day-to-day communication and interaction, but was more comfortable speaking German. The Difference of Opinion Between the Plaintiff and the Defendants 8 Following the death of Mr Sommers, it became apparent for the first time that there was a difference of opinion between Mr Rawack and the testatrix's siblings about what the Will provided concerning entitlement to the home unit and its contents after Mr Sommers' death. Mr Rawack's contention was that the home unit and contents should be sold and the proceeds divided three ways, between the estate of Mr Sommers, Mrs Deckert, and Mr Spicer. The testatrix's siblings were firmly of the view that, whatever the Will said, it had been the testatrix's intention that, after the death of Mr Sommers, the unit and its contents should go to Mr Spicer. There was no dispute that it was the testatrix's intention that the residuary assets, other than the home unit and its contents, should be split three ways, between Mr Sommers, Mrs Deckert, and Mr Spicer.

9 The origin of this dispute about the home unit and its contents, lies in the proviso to Clause 6 of the Will. Clause 6 makes initial provision for division of the net residue resulting from sale of the unit and contents into three parts, but then contains a proviso about what is to happen if either Mr Sommers or Mrs Deckert predeceases the testatrix, or fails to survive her for a month, or dies after her death. As it is inevitable that one of those three alternative situations will arise, it is the proviso that, on a literal reading of the Will, governs the ultimate destination of the home unit and its contents. 10 These proceedings were commenced by summons filed on 10 September 2001. As now constituted, Mr Rawack is the sole plaintiff. The defendants are Mr Spicer, Mrs Deckert, four charitable institutions who took under the Will of Eric Sommers, and Mrs Spicer. Those charitable institutions, though served, have elected not to appear at the hearing. 11 In these proceedings, Mr Rawack seeks an order for rectification of the testatrix's Will in two respects. The first is by either deletion of the words, "or dying after my death", or substituting for the word "or" in the phrase "or dying after my death", the word "and" in the provisos to sub-clauses 6(e) and 7(e) of the Will. The second is by inserting the words "or the beneficiaries of his estate" after the words "my friend Erich Sommer" in sub-clauses 6(e)(i) and sub-clause 7(e)(i) of the Will. 12 Mr Spicer makes a different claim for rectification. He seeks to have the Will rectified by: (a) deleting the words "and upon the said realty herein before referred to" in clause 6 (b) adding after the words "UPON TRUST" in clause 6 the words "for my brother Wallace Spicer for his sole use and benefit absolutely", and (c) deleting the balance of clause 6 after the words "UPON TRUST" to the end of the clause.

Construction 13 The plaintiff's starting point in its submissions on construction, is to point to how the dispositive provisions in paragraphs 6 and 7 of the Will are the same. The plaintiff says that the words "dying after my death" in the proviso would, if taken literally, deprive both Mr Sommers and Mrs Deckert, of any interest in the estate. It is submitted that the preferable way of solving this problem is to read down the word "or" to "and", and to "read the Clause similarly to the words applying to the proviso to Wallace Spicer as "dying within one calendar month from the date of my death"." 14 Whether it is correct to say that the proviso taken literally would deprive both Mr Sommers and Mrs Deckert of any interest in the estate, depends on what is meant by the words in the proviso "THEN such bequests … shall lapse and the same shall accrue to and be paid by my Trustees to my brother WALLACE SPICER for his sole use and benefit absolutely …". Jarman on Wills, 8th edition at page 438 says that: "The term "lapse" is generally applied to failure by the death of the devisee or legatee in the testator's lifetime, but it is sometimes used in a wider sense, as for instance in the case of the failure of a contingent gift by reason of the event not taking place. … it is sometimes used by testators in the sense of being revoked: thus in Re Wand [1907] 1 Ch 391, the testator directed that if a certain event happened in his lifetime the share given to a legatee should lapse and form part of the residue." 15 In my view, in the proviso to this Will, the preferable construction is that "lapse" is used in a wider sense than usual, intended to cover both the circumstance where a gift lapses in the strict sense, by death of the donee in the testatrix's lifetime, and also in a less strict sense, referring to the gift ceasing to apply when and if Mr Sommers or Mrs Deckert die after the testatrix's death. If "lapse" is read in this way, the provisos to clauses 6 and 7 do not result in Mr Sommers and Mrs Deckert being given nothing by the Will - a result which a court of construction would decide it was unlikely the testatrix intended. Rather, this construction is one which results in them each receiving a life estate. 16 There is some tension between the suggestion that Mr Sommers and Mrs Deckert receive a life estate by virtue of the construction of the proviso, and the fact that the gift to each of them in clause 6(e)(i) and (ii) is said to be for "his [/her] sole use and benefit absolutely". However I do not see that tension as providing a reason for not construing the gifts to Mr Sommers and Mrs Deckert as a life estate. The logical form of the gifts made by clause 6(e) to Mr Sommers and Mrs Deckert is, "this interest in property is all yours, except that if you die after I do, it stops being yours and goes to Wallace." A gift like that may be somewhat clumsy, but is still intelligible - and the manner in which it is intelligible is that it creates a life estate. 17 Even if it were to be the case (contrary to my view) that the gift to Mr Sommers and Mrs Deckert for his or her sole use and benefit absolutely was inconsistent with the proviso saying that if they died after the testatrix's death the bequest would lapse and accrue to Wallace, the same result would follow. Jarman on Wills, 8th edition, page 576 says there is: "… an established rule in the construction of wills, that where two clauses or gifts are irreconcilable, so that they cannot possibly stand together, the clause or gift which is posterior in local position shall prevail, the subsequent words being considered to denote a subsequent intention: Cum duo inter se pugnantia reperiuntur in testamento, ultimum ratum est . Hence it is obvious that a will can seldom be rendered absolutely void by mere repugnancy: for instance, if a testator in one part of his will gives to a person an estate of inheritance in lands, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a life interest only, the prior gift is restricted accordingly." 18 It is to be recalled that the gifts in clause 6 are ones which take effect only at the end of Mr Sommers' right of residence in the home unit. That right of residence can come to an end in any of the four circumstances listed in clause 5(2) of the Will. When his right of residence ends, the trustees are in effect given a choice, by clause 6(a) and (b), whether they will sell the unit and furniture, or keep it in specie. If they chose to sell, clause 6(c) gives them a very broad power of investment. If they did not sell, the intermediate income, earned, presumably, by renting out the home unit, would as a matter of law have the same destination as the gift of the three equal parts of a divided residue. Three of the circumstances in which Mr Sommers' right of residence would terminate are ones where Mr Sommers would still be alive. There is nothing that seems in the slightest improbable, taking into account those "testatrix's armchair" facts which are a legitimate aid to construction, in the testatrix intending that, in those circumstances, Mr Sommers should have a right to receive one third of the income generated from the home unit and its contents, for the rest of his life. Likewise, once Mr Sommers' right of residence in the unit was over, clause 6 would give Mrs Deckert a right to receive one third of the income generated by the home unit and contents, for the rest of her life. 19 As Mr Spicer has survived the testatrix by more than one calendar month, it is not necessary to consider all the provisions of the proviso to clause 6 to work out the ultimate destination of the property. As things stand now, Mr Sommers' personal right of residence ended with his death, so there was no occasion for Mr Sommers to receive any gift under clause 6(e)(i) of the Will. The home unit is, now, held by the trustees upon the trusts set out in clause 6 of the Will, such that, until she dies, Mrs Deckert is entitled to one third the income generated, and Mr Spicer is entitled to two thirds of the income generated. Upon the death of Mrs Deckert, Mr Spicer will be entitled to the home unit (or the investments into which it has been converted, if the trustees decide not to exercise their power of postponement of sale) absolutely. 20 The same construction applies to the gift of the residue contained in clause 7. Rectification - The Law 21 Section 29A of the Wills, Probate and Administration Act 1898 says: "(1) If the Court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, it may order that the will be rectified so as to carry out the testator's intention. (2) An application for an order under this section shall not be made after the expiration of the period of 18 months after the death of the testator, except as provided by subsection (3). (3) The Court may grant leave to make an application for an order under this section after the expiration of the 18-month period if the Court is satisfied that sufficient cause is shown for the failure to make the application within that period. …" 22 The present proceedings were begun on 10 September 2001, which is well outside the period of 18 months after the death of the testatrix which clause 29A(2) allows for the bringing of an application for rectification. Hence, each of the parties who seeks rectification also seeks leave, under s 29A(3), for an extension of the 18-month period. 23 The following principles apply concerning section 29A. 24 An application for rectification under section 29A can be brought even after probate has been granted: The Estate of Cecil Douglas Brisbane (Powell J 19 June 1992 unreported); Huszar (Re Estate of) [1999] NSWSC 388 (Young J, unreported). 25 It is possible for rectification of an unclear clause in a will to be granted ex abundanti cautela, where rectification makes clear the testator's intention, even if the clause which the testator actually executed, on its proper construction, means the same as the clause as rectified: Application of Spooner: Estate JJ Davis (Hodgson J, 28 July 1995, unreported); Estate of Cross (McLelland CJ in Eq, 9 May 1996, unreported). 26 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. Even if the court is satisfied that a testator would not have wanted his property to go in the way that, in the events which have happened, a particular clause results in the property going, the court can rectify the will only if it is satisfied about what the testator actually intended to happen to his property in that particular event: Brian William Mortensen v State of New South Wales (New South Wales Court of Appeal, 12 December 1991, unreported); Re Estate of Max Frederick Dippert [2001] NSWSC 167 (Young J, 20 March 2001, unreported). "It is not enough for the Court to have the opinion that, if the deceased had considered the possibility, she probably would have provided in favour of [a named beneficiary]. What is required is an actual intention, which has miscarried ": Trimmer v Lax (Hodgson J, 9 May 1997, unreported at 12). "... What one must look for is an error which has occurred in the transcription of the will or where one can see what the intention of the testator was but the words used have not fulfilled the intention. What one cannot do is to look at unforeseen circumstances and speculate what the testator might have done in those circumstances and then supply words to meet those circumstances." Re Estate of Max Frederick Dippert [2001] NSWSC 167 (Young J, 20 March 2001, unreported at [17]). 27 It is the intention of the testator at the time of making the Will that matters, not the intention at some later time: the Estate of Mina Spinks, Application of Mortensen and Eassie (Needham J, 22 August 1990, unreported); Wesley v Wesley (1998) 71 SASR 1 at 5-6.

28 The decision of Needham J just mentioned was upheld in the Court of Appeal in Bryan William Mortensen and Elizabeth Gedge Eassie v State of New South Wales, (NSWCA, 12 December 1991 unreported). In the course of upholding the decision, Sheller JA, (with whom Mahoney and Meagher JJA agreed) said at 5; "The parties proceeded on the basis that the relevant intention was that at the date of execution of the Will", without any suggestion that so proceeding was inappropriate. 29 There is some family resemblance between the principles on which a court grants rectification of a will and the principles on which an equity court grants rectification of a contract. However, "… I think it may be productive of error in a particular case when determining whether an order should be made under s 29A to pay over much regard to the principles evolved by equity as part of the doctrine of rectification. Primarily the Court is concerned with the meaning of the language of the section.": (Per Sheller JA, Bryan William Mortensen and Elizabeth Gedge Eassie v State of New South Wales, NSWCA, 12 December 1991, unreported, at 6). 30 The dictionary to the Evidence Act 1995 says, "civil proceeding means a proceeding other than a criminal proceeding." A claim for rectification of a will is thus a "civil proceeding" within the meaning of the Evidence Act 1995. Section 140 of the Evidence Act 1995 says: "(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged." 31 Each of the items listed in section 140(2) is relevant to a claim for rectification of a will. The nature of the cause of action or defence, namely a claim to rectify the will of the deceased person, involves a situation closely analogous to that involving a claim against a deceased estate. Hence the factors which will lead a Court to take great care in evaluating the evidence concerning a claim against a deceased estate (referred to in Nagle v Lavender [2002] NSWSC 611 at [25] -[27]) likewise apply to a claim for rectification. That granting rectification involves the Court in altering a document which will irrevocably change the destination of a deceased person's property after death, when the deceased has gone to the trouble of executing in a particularly formal fashion an instrument, often after receiving legal advice that the testator has paid for, is a serious subject matter. To allege that a testator, particularly when a will has been made in a formal fashion and with legal advice, has incorrectly stated, or unclearly stated, his or her intentions in that Will, is to allege a fairly grave matter - not as far advanced, in the spectrum of gravity of allegations, as an allegation of fraud, but still fairly grave. These considerations underlie some of the judicial statements about the standard of proof required before rectification of a will is granted. For example: "None of these cases give any support to the proposition that one can rectify a will other than in cases where there is clear proof of the testator's actual intention..." ( Re Estate of Max Frederick Dippert [2001] NSWSC 167 (Young J 20 March 2001 unreported at [34]). There is a "... need for clear and convincing proof in cases of rectification. As I understand that requirement, it means that the Court should not act unless it is satisfied that the party seeking rectification has used reasonable diligence in presenting to the Court all evidence going to the question of intention, and that the Court must take into account that what is sought is to alter a document which the deceased has taken the trouble to write out and sign and have witnessed. It is also necessary to show an actual intention, not merely what the deceased would have intended had she thought about the matter. But, as I understand it, the requirement for clear and convincing proof does not mean that the standard of proof is other than the balance of probabilities, having regard to the considerations I have mentioned." ": per Hodgson J., Trimmer v Lax (9 May 1997 unreported at 12 - 13)." Rectification - Extension of Time 32 It was only after Mr Sommers' death that it emerged that there was a difference of opinion between Mr Rawack and the testatrix's siblings about whether the Will adequately expressed the testatrix's intentions. Some time was then taken up in obtaining counsel's advice about construction of the Will. For a time, a proposal was being pursued that the difference of opinion be settled, and some time was taken up pursing a settlement proposal before it became apparent that a settlement would not be achieved. A solicitor who was instructed to provide some advice to the testatrix's siblings came to the view that she was unable to act, and another solicitor needed to be found. The delay that there has been in bringing the proceedings is well explained, and no submission has been put that anyone has suffered any prejudice by reason of the delay. None of the parties opposed the granting of leave to bring proceedings for rectification. In these circumstances it is appropriate that leave to bring such proceedings be granted, notwithstanding that the proceedings were commenced more than 18 months after the death of the testatrix. Rectification - The Evidence 33 Mr Rawack gave evidence that, on or about 25 April 1991, he attended the testatrix's home at Double Bay and took instructions. This was the first time that Mr Rawack had been asked to perform any legal work for the testatrix - he had been recommended to the testatrix by one of her sisters. Mr Rawack gives evidence as follows: "The deceased said to me words to the effect, "I wish to make provision for Eric to have a roof over his head in the event of my predeceasing him." I said to the deceased, "Eric can live in the unit, him paying all council rates, water rates and maintenance levies and insurance until he died or voluntarily moved out or if he breached any of the conditions which could be imposed upon such right of residence and that this equitable right of residence could be provided for in the will to give effect to your wishes." I then asked the deceased, "What is to happen to the remainder of your estate other than the unit, the subject of the proposed equitable right of residence?" The deceased said, "I want to have everything divided three ways between my brother Wallace Spicer, my sister Ruth Deckert and my friend Eric Sommers." I also said to the deceased words to the effect, "The equitable right of residence can impose conditions upon Eric when taking up such right of residence. The equitable right of residence can be made subject to and conditional upon Eric being able to and caring for himself, him remaining single and not entering into a de facto relationship; keeping the unit and furnishings insured and in good repair; and paying all rates, taxes and outgoings including maintenance levies and insurance premiums." The deceased appeared to accept my advice. It was my usual practice when discussing the inclusion in a will of an equitable right of residence, to discuss with the client his or her wishes with respect to the realty upon termination of such equitable right of residence. I recall discussing this with the deceased. I clearly recall the deceased saying to me, "After Eric's death everything is to be sold and the proceeds divided one third to Wallace, one third to Eric and one third to Ruth and even after the death of Eric I want my estate to go to my brother, my sister and Eric." The deceased also said to me, "I want to make provision in my will in the event of Wallace, Ruth or Eric dying before me."" (emphasis added) 34 Mr Rawack made some file notes at the time of taking these instructions. They read as follows: "328-7542 HILDE TONN 74/45 Ocean Street Double Bay VIOLA SPICER 7 Nichol Avenue Maroubra MKR - ERIC SOMMER eq life int So long as he is able to care for = look after himself= doesn't enter into de facto relationship - Paying c/r w/r m/l + insurance. - Everything sold + proceeds divided as follows. 1/3 Wallace Spicer 1/3 Eric Sommers - Then Wallace 1/3 Ruth Deckert - 1A Aubrey Street, Stanmore Sister If not then Wallace Rookwood Jewish Cemetery - double grave Grave no 479 + 480 Section 20 Gerhard Adolf Tonn - Power of Attorney - HT - VIOLA ERICH SOMMER - HT + Viola (also known as Eric Sommers)" 35 "c/r w/r m/l" is Mr Rawack's abbreviation for "council rates, water rates, maintenance levies". The last entry relates to instructions which were given to Mr Rawack at the same time for the preparation of two powers-of-attorney, one each for the testatrix and Mr Sommers. 36 Mr Rawack composed the Will himself, on a computer, drawing to some extent on precedents of other wills. He cannot now recall how the words "or dying after my death" came to be included in the provisos in both Clauses 6 and 7 of the testatrix's Will. 37 On 1 May 1991 Mr Rawack took the Will to the testatrix's home. He gave her the opportunity of reading it over to herself, then answered questions which she had about it. He took the original of the Will back to his office for safe custody. 38 On 29 June 1994 Mr Rawack again attended the testatrix's home unit. On that occasion, he took instructions from Mr Sommers concerning his Will. The testatrix was present while those instructions were given. She said to Mr Sommers, "you should leave my nieces each $10,000 and the rest to go to charities". There was then some further discussion in which particular charities were identified. Mr Sommers made a will in accordance with those instructions, which was his last. The three nieces who were given the legacies of $10,000 each were the three children of Mr Spicer. Though Mr Sommers had given instructions for this Will before the death of the testatrix, he did not execute it until 24 November 1994, after the death of the testatrix. At the time of execution, he said to Mr Rawack, "This is what Hilde wanted". Mr Sommers' assets, as disclosed for probate purposes, consisted of a one-third interest in the residue of the estate of the testatrix (including her realty), plus other assets worth a little less than $135,000. (Mr Rawack was one of the executors of Mr Sommers' estate, and also the solicitor who obtained probate of Mr Sommers' estate, so inclusion of a one-third interest in residue of the testatrix's estate was a reflection of Mr Rawack's understanding of the provisions of the testatrix's Will.) 39 I have no reason to doubt that Mr Rawack was doing his honest best to recount the instructions he had received. However, there were some matters of detail in his cross-examination which caused me to wonder about how good his recollection was. His handwritten note, made at the time of taking instructions, is open to the construction that the home unit, and other assets, were all to have the one ultimate destination. The line which reads, "1/3 Eric Sommers - then Wallace" does not appear to be limited to the home unit and its contents. Even if it were limited to the home unit and its contents, that line in the note does not sit well with Mr Rawack's oral evidence that one third of everything was to go to Mr Sommers, even after his death. However, the note is quite sketchy, and open to various interpretations, so, notwithstanding the importance usually placed on contemporaneous records in deciding a question such as the present one, the note is nothing like sufficient to discharge an onus of satisfying the Court that the testatrix had any particular intention concerning her Will. Further, I cannot accept Mr Rawack's evidence that the note contains a full account of his instructions - it says nothing about the substitutionary gifts, first to Mrs Spicer, then to her children which are contained in clauses 6 and 7. Even so, when Mr Rawack was cross-examined about what was actually said in the conversation where the testatrix gave instructions, he said, "Mrs Tonn was quite definite she wanted everything divided three ways even after the unit was sold". There is a difficulty with Mr Rawack's account of the instructions, in that, if Mr Sommers' estate was to receive a one third share in the unit after the death of Mr Sommers, it would hardly be appropriate to make the gift of a one third share to Mr Sommers "for his sole use and benefit absolutely". While this is a difficulty, it is a difficulty which, in the ordinary course of things, might be explained by less than crystalline draftsmanship rather than by Mr Rawack's account of his instructions being wrong. My overall view of Mr Rawack's evidence is that, I have some reservations about his accuracy, and am not prepared to regard his evidence as sufficient to satisfy me, in accordance with the appropriate standard of proof, about what the testatrix's intentions were. Neither, however, is it evidence upon which no weight can be placed. 40 Mr Spicer gave affidavit evidence of a visit to the testatrix's home soon after the testatrix had made her Will, when the testatrix showed him her Will in Mr Sommers' presence. His affidavit deposed to the testatrix then saying, " "Here is my will. After I have gone the unit will be yours but if Eric is still living he is to have the use of the unit for the rest of his life and is to be responsible for all expenses connected with it, the rest of my estate is to be divided equally between Ruth [Hilde's sister], Eric, if they are still living, and yourself. If Ruth survives me, you will look after her for the rest of your life, of course." 41 The force of this evidence was lost when Mr Spicer agreed in cross-examination that the testatrix had not shown him her Will, and had not discussed it with him. Even so, the general tenor of Mr Spicer's evidence was that he had had an understanding that, "All along the unit was always supposed to be mine eventually. Whatever the residue was, was going to be split up." This is said in a context where the splitting up of the residue that he was referring to, was splitting it evenly between Mr Sommers, Mrs Deckert, and Mr Spicer. 42 Mr Spicer gives evidence that on several occasions the testatrix said to him, "This [the unit] will eventually be yours." He also gives evidence of several conversations with Mr Sommers, where Mr Sommers said to him, "When I kick the bucket you've got all of this", in a context where Mr Spicer understood Mr Sommers to be talking about the unit and the furnishings. 43 Mrs Gore had been a friend of the testatrix since 1939. They saw each other very frequently, went swimming together, met socially just for the pleasure of it, and played bridge together at least once a week. She gives evidence of a conversation with Mr Sommers, soon after the testatrix's death, when he said, "I can stay here for as long as I like, or until I die then the unit goes to Wallace". Mrs Gore gives evidence that the testatrix had talked to her a few times about her Will. One occasion was when the testatrix said she was going to go to Mr Rawack to change her Will. On that occasion the testatrix said to Mrs Gore: "… all the money in cash which I have invested one third goes to my sister Ruth, one third goes to my brother, one third goes to my partner Eric Sommers … the unit goes to my brother Wallace. Eric can stay there as long as he likes or as long as he lives and then it goes to my brother Wallace." 44 Though Mrs Gore was 95 years old when she gave evidence before me, she was mentally alert, well able to respond to the nuances of questions put to her (once she had overcome some initial difficulty in hearing), and quite confident in the soundness of her own memory ("I have got it black and white. My memory is very good. That is definitely what she told me.") She was not shaken in cross-examination. 45 Mrs Sturm gives evidence of a conversation that she had around 1991 with the testatrix, where the testatrix reported that she had made a new Will. In the course of that conversation, the testatrix said, "Erich can stay here as long as he is alive but no woman in allowed to live here with him", and "When Erich dies everything is for Wallace and he has to look after Ruth for as long as she lives". 46 Mrs Sturm also gives evidence of another conversation, at an unspecified time, when the testatrix said to her, "When I am gone, Wallace will get my home. I am happy that Wallace will be well off." 47 Mrs Sturm was aged 86 when she gave evidence before me. Though she was doing the best she could, I am not confident that she had a good recall of the events about which she was giving evidence. She admitted herself, concerning one of the conversations, that she did not have a very good recollection of it. 48 Mrs Spicer gives evidence of a conversation with the testatrix, in which the testatrix said: "I don't know how much longer I have to live and I want to make sure that Ruth and Eric are looked after. I want to make sure that Eric can stay in the unit for as long as he likes, as long as he pays all the expenses himself and provided that he never brings another woman to live there. After that the unit is to go to Wallace or if anything should happen to him to you and then your children. I want Wallace to have the unit because he is the only one of us with children. I want everything else to be divided into three equal shares to go to Ruth, Wallace and Eric. I want you to be the executor of the Will to make sure that everything will be in order." 49 This conversation took place before execution of the Will. 50 Mrs Spicer also gives evidence of a conversation with the testatrix, when the testatrix said: "On the next occasion that we saw her she said words to the effect: I have seen Mr Rawack and have made my Will. Everything is to be divided into three, to go to Ruth, Wallace and Eric. Eric can stay in the unit as long as he does not bring another woman and can look after himself. He also has to take care of all the expenses. After that the unit will go to Wallace." 51 Mrs Spicer was a co-executor, with Mr Rawack, of Mr Sommers' estate. In connection with Mr Sommers' estate, she had sworn an affidavit of executor, which included an inventory of property. That inventory disclosed as an asset of Mr Sommers' estate a one third interest in the testatrix's estate, including a one third interest in the realty. As well, she was, when these proceedings were begun, a co-plaintiff with Mr Rawack - it was only with the filing of an Amended Summons in May 2002 that she moved from being a plaintiff to being a defendant. Before these proceedings were commenced, she signed, on 23 August 2001, a consent document which says, "I … consent to being named as a plaintiff in the proposed proceedings for rectification of the will of Hilde Tonn and for declarations by the Court that the words "or dying after my death" do not affect the gifts made to the late Eric Sommers or my sister-in-law Ruth Deckert." 52 These documents were the basis of an attack made on her in cross-examination, to the effect that it was only very recently that she had come to express the view that events like those in the evidence which I have set out in paragraphs 48 and 50 above occurred. It was by an affidavit sworn on 26 July 2002 that she gave the evidence set out in paragraphs 48 and 50 above. 53 I accept Mrs Spicer's evidence that, from a time soon after the death of Mr Sommers, she told Mr Rawack that there was a mistake in the testatrix's Will. I accept her evidence that she relied on Mr Rawack, as the solicitor for the estate, to get the inventory of Mr Sommers' estate property right. I accept her explanation of the consent document that she did not understand it properly, and that she understood that it meant that the Court would decide whether or not Mr Rawack's view of what the Will meant was correct. In my view, she was an honest witness, and, while she had some haziness of recollection, I accept the broad outlines of her evidence. 54 While the relevant time for ascertaining the intention of the testatrix, for the purposes of deciding whether rectification of the Will should be granted, is the time of execution of the Will, it is possible to take into account statements and acts of the testatrix, both before and after execution of the Will, in deciding what her intention was at the actual moment of execution. 55 So far as her intention concerning the home unit and contents are concerned, I am faced with evidence from Mr Rawack that she intended the home unit and contents to pass so that (ignoring for the moment substitutionary gifts) one third of the proceeds of sale flowed to each of Mr Sommers estate, Mrs Deckert, and Mr Spicer. The evidence from Mr Spicer, Mrs Gore, Mrs Sturm and Mrs Spicer is all to the effect that her intention was that Mr Spicer should eventually receive the unit and its contents. As well, there is evidence of statements by Mr Sommers (which were contrary to his own interest) that his understanding was that the home unit would, eventually, go to Mr Spicer. Faced with this conflict in the evidence, I am not persuaded that the testatrix had any intention which was different to that which the Will, as properly construed, means. I am not prepared to grant rectification of clause 6 of the Will. 56 In the course of argument, counsel for the plaintiff accepted that a question of whether it was the testatrix's intention that clause 7 of the Will should have the effect that her residuary estate was divided three ways, between Mr Sommers, Mrs Deckert and Mr Spicer, was within the scope of the issues which had been litigated. Counsel for Mr Spicer stated that his client had no objection to any rectification of the Will, the effect of which was to divide the residuary estate three ways, in the manner I have just outlined. 57 There is unanimity, between the witnesses on whom I can place any weight, that the testatrix's intention was to divide her residuary estate in three ways. The event where the testatrix made suggestions to Mr Sommers about the manner in which Mr Sommers should leave property in his own Will (see paragraph 38 above) is, while not directly indicative of the testatrix's intention concerning her own Will, at least consistent with her believing that some assets would flow from the testatrix's estate to Mr Sommers' estate. When there is this unanimity of the reliable evidence, I am satisfied that the testatrix's intention concerning the destination of her residuary estate is not given effect to by the Will she executed. Clause 7 of her Will should be rectified. In the events which have happened, her intention will be given effect if clause 7 is rectified by deleting from clause 7(e) all words from "PROVIDED that in the event of either my friend" to the end of clause 7(e). Declaration and Orders 58 I make the following declaration and orders:

Declare that upon the true construction of the Will of the Late Hilde Tonn made 1 May 1991, and in the events which have happened, the net residue referred to in Clause 6(e) is to be divided into three equal parts and held, (a) as to one such equal part for Erich Sommer (also known as Eric Sommers) for his life, and then for Wallace Spicer

(b) as to another one such equal part for Ruth Deckert for her life, and then for Wallace Spicer, and

(c) as to the remaining one such equal part for Wallace Spicer.

Order that Clause 7 of the said Will of the Late Hilde Tonn be rectified by deleting from sub-clause (e) of the said Clause 7 all words commencing with "provided that in the event of either my friend" to the end of the said sub-clause (e).

Order that the Probate of the said Will of the Late Hilde Tonn be brought into Court as soon as practicable for the noting of the said rectification upon the Probate.

Otherwise, second amended summons and amended cross-claim dismissed.

These orders not to be entered until the expiry of 28 days after delivery of these reasons for judgment. 59 If any party wishes to make any further application concerning any matter not disposed of by these reasons for judgment, that party may do so within 28 days of the date of these reasons for judgment, on a date fixed by arrangement with my Associate, and with no less than three days notice to the other parties. If such application is made, I shall revoke order 4 above, and make such other orders as then seem fit. **********

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