Re Hawkes [2005] VSC 93 (3 March 2005)

2 The problem with Mr Hawkes' Will is that whilst it appointed Mrs Liddell as executor and trustee of the Will, it did not go on to make any disposition of his estate. Having appointed Mrs Liddell to be executor and trustee in paragraph 2 of the Will, the deceased said in paragraph 3:

"I give, devise and bequeath the whole of my real and my personal estate whatsoever and wheresoever situate unto my trustee to pay all my just debts, testamentary and funeral expenses and all probate and estate duties and taxes payable in respect of my estate or part thereof, and subject to such payments".

"And witness whereof I hereunto set my hand this 29th day of April 1998."

3 In her affidavit in support of the application Mrs Liddell explained that she was the sister of the deceased and that she had lived with him since about 1978 when both her husband and Mr Hawkes' wife died. She did all of the cooking and cleaning and ran the house for him. Although Mr Hawkes paid most of the bills she paid her share of the grocery bill and the telephone bill. Until around 2000, Mrs Liddell stayed with Mr Hawkes for at least nine months in each year. The rest of the time was spent in Queensland keeping in touch with her children. However, during the last four years of the deceased's life, she lived with him full time.

4 Mrs Liddell said that she only recalled one conversation with her brother about what he wanted to do with his property after his death. He observed that she had never had a home of her own and said that if he died before her she would have his home because of all she had done for him.

5 Although she did not remember being present at the time the deceased signed his Will, Mrs Liddell said that she remembered the day because on that same day she signed an enduring power of attorney supposedly from Mr Hawkes appointing her his attorney. However, he appears not to have signed that document. Mrs Liddell said that as on other occasions when there were visitors she was in and out of the room "making tea and attending to things", whilst Mr Hawkes and his visitors talked.

6 An affidavit was sworn by Dorothy May Kuhn, a cousin and close friend of Mr Hawkes. She said that she was a frequent visitor to the house. She was always driven there by her niece, Anne Lydia Flynn. As a result of discussions between the deceased and Mrs Kuhn in late March or early April 1998, she volunteered to prepare a will for Mr Hawkes to sign because he did not want to spend any money on a solicitor. Mrs Kuhn deposed that in these discussions the deceased told her he wanted his sister, Mrs Liddell, "to get everything".

7 On the day in question Mrs Kuhn hand wrote out a will, apparently copying from her own will, leaving spaces for Mr Hawkes to fill in his own name and address. Mrs Kuhn deposed that prior to starting to draw up the Will she asked Mr Hawkes to whom he wanted to leave his money and he nominated the plaintiff. Despite this, she left a blank space in paragraph 2 for the insertion of a name. After the Will was drawn up she again asked him "who he wanted to get his property" and he again nominated the plaintiff. Mrs Kuhn then filled in Mrs Liddell's name in the space she had left in paragraph 2 of the Will. Mrs Kuhn swore that there was no intention to insert any words after the words "subject to such payments" in paragraph 3. She thought that what she had written would be enough once the name was inserted in paragraph 2.

8 Having been told by Mrs Kuhn that the will she had written left everything to Mrs Liddell, the deceased read it, wrote his own name and address in it and signed it. Mrs Kuhn and Ms Flynn witnessed the Will. Mrs Kuhn said that Mrs Liddell was in and out of the room while this was occurring.

9 In her affidavit, Ms Flynn stated that she heard the deceased say that he wanted to leave everything to Mrs Liddell, once before the Will was signed and again on the day when the Will was signed.

10 The affidavit material also established that all of the other relatives of the deceased, who were the persons who would be entitled to share in the estate upon an intestacy, being a brother and two nephews in South Australia and a niece in England, were advised of this application and of the desirability of seeking their own independent legal advice. The niece in England and a nephew in South Australia, on behalf of himself, his brother and his father, advised the plaintiff's solicitors in writing that they did not oppose the application by the plaintiff.

11 By operation of s.52(4) of the Wills Act 1997, s.31 of that Act applies to any will, whenever executed provided that the deceased died after the commencement of the 1997 Act, being 20 July 1998. As the deceased died on 7 September 2004, after the commencement of the 1997 Act, it is irrelevant that the deceased's last Will was dated 29 April 1998, before the commencement of the 1997 Act.

12 Rule 12.02(1) of the Supreme Court (Administration and Probate) Rules 2004 provides that an application for an order under s.31(1) of the Wills Act 1997 shall be made by summons filed in the proceeding in which the grant of representation was made.

13 Section 31(1) of the Wills Act 1997 gives the Court power to rectify a will if the Court is satisfied that the will does not carry out the testator's intentions either because (a) a clerical error was made or (b) the will does not give effect to the testator's instructions. Section 31(2) of that Act provides that an application for an order under sub-section (1) must be commenced within six months from the date of the grant of probate. As previously stated, this application was made by summons dated 25 February 2005, well within the period of six months after the grant of probate on 13 December 2004.

14 Mr Verspaandonk of counsel who appeared on behalf of the plaintiff submitted that provisions in other States[1] which are similar to s.31(1) of the Wills Act 1997 have been interpreted as requiring the following matters to be established before an application is granted. First, that the Will as expressed did not give effect to the testator's intentions, and secondly, what it was that the testator actually intended in relation to the part to be rectified. This principle was stated by Campbell J of the Supreme Court of New South Wales in Rawack v Spicer[2]. See also the decision of Williams J of the Supreme Court of South Australia in In the Estate of Quick[3] and the decision of Whelan J of this Court in Re the Estate of Prevost[4].

15 Other propositions advanced by Mr Verspaandonk in reliance on decisions in new South Wales and South Australia were that the discretion is limited to rectifying the Will only to the extent required to give effect to the testator's intentions[5] and that the relevant intention is that at the time of the making of the Will[6]. He further submitted that rectification is not available to remedy a situation where there has been mere inadvertence to address particular possibilities. As Young J said in Re Estate of Dippert[7]:

"What one cannot do is look at unforeseen circumstances and speculate what the testator might have done in those circumstances and then supply words to meet those circumstances."

16 Finally, Mr Verspaandonk drew attention to what was said by Hodgson J in Trimmer v Lax[8] concerning the standard of proof:

"I do take into account the 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. ... 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."

17 I am satisfied on the material before the Court that the testator's intention was not given effect to because it was his clear intention at the time he made his Will to leave his estate to Mrs Liddell, his sister, and that through error, it was thought that it was sufficient to name Mrs Liddell only as executor and trustee. In fact, no gift of the residue of the estate was made.

18 In the circumstances, I am satisfied that it is appropriate to make an order rectifying the Will to the extent necessary to give effect to the testator's intention. This result can be achieved by adding words into the Will so that paragraph 3 would continue with the words: "to hold the balance then remaining for her own sole use and benefit absolutely." The order sought by counsel on behalf of the plaintiff will be made in the form suggested.

1. [1] Section 29A(1) of the Wills, Probate and Administration Act 1898 (NSW) and s.25AA(1) of the Wills Act 1936 (SA)
2. [2] [2002] NSWSC 849 at [26] citing Mortensen v State of New South Wales CA (NSW), 12 December 1991, unreported, Trimmer v Lax Hodgson J, 9 May 1997, unreported, at 6, Re Estate of Dippert [2001] NSWSC 167 at [17] per Young J.
3. [3] [1996] SASC 5460 at [14] and [16]
4. [4] [2004] VSC 537 at [17]
5. [5] Mortensen v State of New South Wales NSWCA, 12 December 1991, unreported, per Sheller JA
6. [6] Wesley v Wesley [1998] SASC 7054; (1998) 71 SASR 1 at 5-6 per Debelle J; Rawack v Spicer [2002] NSWSC 849 at [27] and [28] per Campbell J
7. [7] [2001] NSWSC 167 at [17]
8. [8] 9 May 1997, unreported, at 6. See also Re the Estate of Prevost [2004] VSC 537 at [17] per Whelan J.