Re Estate of Sillitoe [2024] VSC 37 (14 February 2024)

3 There is no issue about the first codicil, which left a specific gift. The present issue relates to provisions of the will and the second or last codicil.

5 Clause 2 of the will addresses the appointment of an executor. The first proposed executor renounced and probate was ultimately granted to the stated alternative, who is the present plaintiff.

6 Clause 3.1 identifies and appoints Australian Executor Trustees Ltd to be trustee of the will.

7 The will thereafter addresses payment of debts, taxes and expenses and makes a series of specific gifts. The will also addresses the distribution of the deceased's chattels.

8 Clause 7 of the will directs the trustee to hold the balance of the deceased's estate on trust and, in that connection, establishes 'a trust ... known as the Neville Sillitoe Foundation' ('foundation').

9 The foundation is established 'in memory of the East Melbourne Harriers ... founded in 1895, and in memory of Ray Burgess and David Mather, great friends and great coaches' and, in substance, is to operate for 'purely public charitable purposes' relating to the education, maintenance and support of promising track athletes.

10 Clause 11 authorises Australian Executor Trustees Ltd to render certain fees and charges in connection with the foundation.

11 As a matter of construction, it is plain that the will provides that the specific gifts and other steps should fall to the executor and that Australian Executor Trustees Ltd is to hold the residue of the estate as trustee for the foundation.

12 In that regard, the clauses to which I have referred distinguish between the foundation and its identified trustee.

13 As I have mentioned, the first codicil makes a further specific gift. There is no issue about the efficacy of that step.

14 The second or last codicil was made in circumstances to which I will later refer. Relevantly, it states -

I, Neville Sillitoe, on this day

make this codicil amendment to my existing legal will which is dated 24th of May 2016.

I revoke the appointment of Australian Executor Trustees Limited as the trustee of my Will, and appoint Athletic International Trust as the trustee of my Will.[2]

15 Both codicils were seemingly prepared and witnessed by Vicki and Maxwell Hooper, who were long-time friends of the deceased. It is not apparent that the deceased or Mr and Mrs Hooper were legally qualified or had anything other than the very broadest understanding of the presently relevant legal concepts and principles.

16 Probate of the will and codicils was granted to the plaintiff on 17 November 2021.

17 The present issue concerns the plaintiff's contention that certain provisions of the will together with the last codicil do not give effect to the deceased's testamentary intentions and instructions.

18 On 17 May 2022, the plaintiff filed an originating motion relevantly seeking the following orders -

1. If required, pursuant to s 31(3) of the Wills Act 1997, the time for making an application for rectification of the Will be extended.

2. Pursuant to s 31(1) of the Wills Act 1997, the Will be rectified as follows:

(a) By removing clause 3;

(b) By removing clause 7.2; and

(c) By removing clause 11.

1. Pursuant to s 31(1) of the Wills Act 1997, the Last Codicil be rectified as follows:

(a) By removing the appointment by the Last Codicil of "Athletic International Trust" as trustee of the Will; and

(b) By inserting the following clause:

I revoke clause 7 of my Will and replace it with the following new clause 7:

7. Residuary Estate

I give the balance of my estate not otherwise distributed by this my Will to AI Nominees Pty Ltd ACN 078 484 072 of 9 Creswick Street, Glen Iris, Victoria, 3146 in its capacity as trustee of The Athletics International Trust ABN 92 686 080 763.

4. ... .

19 In respect of order 1, the plaintiff submits, and I accept, that the proceeding was commenced within time. Consequently, no extension of time is required. If an extension of the time were required, I would be inclined to grant it.

20 On 12 September 2023, the plaintiff filed a summons which re-states the relief sought as follows -

1. Pursuant to s 31(1) of the Wills Act 1997, the Codicil dated 19th May 2021 of the late Neville John Sillitoe, deceased be rectified as follows:

(a) By inserting the following clause, in lieu of the words 'I revoke the appointment of Australian Executor [T]rustees Limited as the trustee of my Will, and appoint Athletic International Trust as the trustee of my Will':

I revoke clauses 3, 7 and 11 of my will dated 24th May 2016 and I give the balance of my estate not otherwise distributed by this my Will to AI Nominees Pty Ltd ACN 078 484 072 of 9 Creswick Street, Glen Iris, Victoria, 3146 in its capacity as trustee of The Athletics International Trust ABN 92 686 080 763 ('the Trust') to be held for the purposes of the Trust.

I otherwise confirm my said will dated 24th May 2016 and my codicil thereto dated 27th November 2020.

21 Rule 12.02(1) of the Supreme Court (Administration and Probate) Rules 2014 (Vic) provides that an application for rectification made under s 31(1) of the Wills Act 1997 (Vic) ('the Act') 'shall be made by summons filed in the proceeding in which the grant of representation was made'. It follows that the proceeding might strictly speaking be said to be irregular. However, in the present instance nothing of substance turns on the point and I would dispense with the requirement. Any such irregularity should be taken to be remedied.[3]

22 In connection with the relief sought, the plaintiff relies upon -

(a) affidavits of the two witnesses to the codicils, Vicki and Maxwell Hooper, each affirmed 30 May 2022;

(b) an affidavit of the plaintiff and executor, Denise Boyd, affirmed 26 July 2022;

(c) an affidavit of current director and shareholder of AI Nominees Pty Ltd, Lisa Lightfoot, affirmed 23 November 2022; and

(d) an affidavit of the solicitor, Edward Skilton, sworn 6 December 2023.

23 The substance of the plaintiff's contentions were advanced in written submissions dated 12 October 2023.

24 On 12 October 2023, JR Keith ordered, among other things, that the proceeding be referred to a judicial officer to be determined on the papers.

25 By solicitor's email dated 14 November 2023, the defendant advised that she does not oppose the relief sought and would not be filing any additional material.[4]

26 On 7 February 2024, the proceeding was referred to me for determination on the papers.

27 Section 31(1) of the Act provides -

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

(a) a clerical error was made; or

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

28 In the present instance, it is evident that the plaintiff relies particularly upon s 31(1)(b).

29 In Re Estate of Prevost (deceased),[5] Whelan J (as his Honour then was) summarised the applicable principles as follows -

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.[6]

30 The deceased's intentions must be examined at the date of the will (or codicil) and the Court is required to 'recognise the gravity of the task before it, and its consequences'.[7]

31 The plaintiff is the executor of the will and codicils and describes her occupation as company director.

32 The plaintiff deposes, in substance, that she visited the deceased on 5 May 2021 and they discussed The Athletics International Trust, which was said to operate similarly to the foundation to be established under the will. The plaintiff knew that some of the former athletes who the deceased had coached were members of The Athletics International Trust. In that context, the deceased said to her, in substance -

I would like to change the trustee of my foundation to The Athletics International Trust.

I would like to direct my funds to The Athletics International Trust.

I think that would be more practical than spending money to set up a separate foundation.[8]

33 The deceased's statements, of course, reveal several misconceptions that would have been apparent to a legally qualified person. Nonetheless, at that point his intentions seems clearly enough to have been -

(a) to dispense with the establishment of his own foundation; and, instead

(b) to direct the relevant funds of his estate to The Athletics International Trust.

(a) on 18 May 2021 she spoke by telephone with Vicki and Maxwell Hooper who told her that the deceased had been given two days to live and that he had asked them to 'prepare a codicil to change the trustee of his will'; and

(b) the following day, 19 May 2021, she spoke again with Vicki and Maxwell Hooper who confirmed that they had prepared the codicil and were on their way to see the deceased;

(c) she then spoke with her own solicitor, who suggested that she ask Vicki and Maxwell Hooper to prepare an additional letter confirming the amendments;

(d) based upon her conversation with the deceased on 5 May 2021, she believes that his intention was 'to gift his estate to The Athletic International Trust as distinct from creating [the foundation]'; and

(e) she is bringing the present application 'to put into effect the wishes of the [d]eceased'.

35 Vicki Hooper describes her occupation as company director and describes herself and her husband, Maxwell Hooper, as -

(a) long-time friends of the deceased; and

(b) having visited the deceased regularly in care.

36 Mrs Hooper deposes to her knowledge that the deceased had made a will that provided for the establishment of the foundation. In that regard, as I have noted, Mr and Mrs Hooper were the witnesses to the first codicil.

37 Mrs Hooper deposes to a discussion with the deceased on 7 May 2021 in which he said -

When Denise [the plaintiff] was in Melbourne we discussed changing the trustee of my foundation to the one Denise found out about.

I have thought about it and I think it would be more practical than spending a lot of money setting up a separate foundation to do the same thing.

38 Mrs Hooper deposes to a later discussion with the deceased on 18 May 2021 in which he said -

I have been given two days to live.

I want Max to prepare a codicil to change my Will to remove Australian Executor Trustees Limited from the Will and to appoint The Athletics International Trust in its place.

I haven't got long so this needs to be done straight away.

I still want Denise to be involved in how the estate funds are used by Athletics International Trust.

39 In respect of the latter statement, Mrs Hooper deposes that he did not understand the deceased to mean that the plaintiff should be in a position of 'control or management'; rather, that she would be advised of 'intended distributions' made from time to time.

40 Those discussions and instructions, of course, carry within them the misconceptions to which I have earlier referred.

(a) to her knowledge, the deceased had no experience of dealing with trusts;

(b) she and her husband, Maxwell Hooper, had no 'legal background or understanding of trust law';

(c) she and her husband prepared the last codicil on their computer at home;

(d) while they were on their way to see the deceased on 19 May 2021, the plaintiff requested the 'letter' (Mrs Hooper thereafter outlines the practical manner in which that request was attended to using one of the printed copies of the codicil);

(e) her husband read the last codicil to the deceased and said that the plaintiff had asked them to confirm the change in a letter as well; and

(f) the deceased executed the codicil by signing his name.

42 The affidavit of Maxwell Hooper is essentially corroborative of that of his wife.

43 The affidavit of the solicitor, Edward Skilton, exhibits the will and the two codicils.

(a) the registration of AI Nominees Pty Ltd on 9 May 1997 as trustee for funds held for the benefit of Athletics International;

(b) the establishment on 27 May 1997 of The Athletics International Trust;

(c) the registration of The Athletics International Trust as a charity; and

(d) the stated charitable purposes of The Athletics International Trust, namely 'to offer support for the sport of Athletics, for the fostering of community participation in Athletics and the promotion of organised Athletics throughout Australia'.

45 As I have noted, the operative terms of the last codicil simply revoked the appointment of Australian Executor Trustees Ltd and purported to appoint 'Athletic International Trust as the trustee of my Will'.

(a) it was not the intention of the deceased 'merely to replace the trustee named in the will with a different trustee, leaving the ... foundation ... in place';

(b) the instruction of the deceased in respect of the second or last codicil was to 'abandon his intention to establish a new trust and instead to leave his residuary estate to an existing trust, The Athletics International Trust'; and

(c) 'all of those involved' believed that the deceased's instruction could be achieved simply by changing the identity of the trustee, which was erroneous.

47 Broadly speaking, the submissions of the plaintiff should be accepted.

48 As I have noted, the deceased seems to have held several misconceptions, particularly -

(a) that The Athletics International Trust was a trustee; and

(b) by simply installing The Athletics International Trust as 'trustee' under his will he would be able to -

(i) avoid the establishment of the foundation; and

(ii) direct the relevant estate funds to the use of The Athletics International Trust.

49 Notwithstanding the limited terms in which the deceased directed that the second or last codicil be prepared, it is plain that his testamentary intentions and instructions also included -

(a) dispensing with the creation of 'a separate foundation'; and

(b) giving 'estate funds' to the use of The Athletics International Trust.

50 In the circumstances in which the deceased gave his instructions to Mr and Mrs Hooper, it is perhaps understandable that -

(a) his various misconceptions did not come to be identified and corrected;

(b) Mr and Mrs Hooper drew the second or last codicil in a form that merely replaced the stated trustee, Australian Executor Trustees Ltd, with The Athletics International Trust, 'as the trustee of my Will'; and

(c) the deceased executed the last codicil in those limited terms.

51 However, that limited form of words did not give effect to the deceased's intentions and instructions; particularly those identified above.

52 In the circumstances, mindful of the gravity of the present task and the consequences of rectifying the terms of a document with testamentary effect, I am satisfied to the requisite standard that the second or last codicil did not carry out the deceased's intentions because it did not give effect to the deceased's instructions.

53 It follows that the relief sought by the plaintiff in the summons should be granted.

(a) all centrally relevant and available witnesses seem to have deposed to the relevant events (particularly, the plaintiff and Mr and Mrs Hooper);

(b) none of those witnesses has any apparent interest in the outcome of the application other than, as the plaintiff puts it, 'to put into effect the wishes of the [d]eceased';

(c) there is no suggestion by the defendant that any of the evidence ought not be accepted and, as I have noted, the defendant does not oppose the relief sought; and

(d) that relief would seem generally to further the charitable purposes which motivated the deceased.

55 Orders in the substance of the terms sought by the plaintiff will accompany the publication of these reasons.

[1] See, grant of probate exhibited to the affidavit of Edward Skilton sworn 6 December 2023.

[2] Affidavit of Edward Skilton sworn 6 December 2023, 12.

[3] Supreme Court (Administration and Probate) Rules 2014 (Vic), rule 1.05 and Supreme Court (General Civil Procedure Rules 2015 (Vic), rules 2.01-2.04.

[4] See also, earlier letter from the defendant's solicitor to the Court dated 22 August 2023.

[5] [2004] VSC 537.

[6] Ibid [17] (footnotes omitted). As to 'clear and convincing proof', see Re Hawkes [2005] VSC 93, [16] and Vanta Pty Ltd (as trustee of the Mantovani Family Trust) & Ors v Mantovani & Anor [2023] VSCA 53, [60]-[92].

[7] Chan Valmorbida: IMO the Will of Adrian Valmorbida [2019] VSC 336, [46]-[48]. See also, Silva v Scott [2022] VSC 397, [11].

[8] Cf, Affidavit of Denise Margaret Boyd affirmed 26 July 2022, [6] and [9].