SHIRDON -v- COX [2019] WASC 433 (6 December 2019)

50. Court may rectify will

(1) The Court may make an order rectifying a will to carry out the intentions of a deceased 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) Any application for an order under this section must be made within 6 months after the death of the testator.

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

(4) A certified copy of an order under this section must be attached to the original will and to the probated copy of the will.

(5) Subject to subsection (2), the power conferred by subsection (1) extends to the will of a person who died before the commencement of section 24 of the Wills Amendment Act 2007.

1. The parties were in agreement, as was I, that the plaintiff's submissions correctly summarised the law and I have largely followed those submissions in these reasons.
2. Similar statutory provisions in other States have been described as beneficial and remedial provisions wider in scope than the common law.[1]
3. Before making an order for rectification, the court needs to be satisfied of the following:[2]

(a) the testator's testamentary intentions at the time the will was made;[3]

(b) that the will as drafted, on a proper construction, does not give effect to the testator's testamentary intentions;[4]

(c) that the will does not express the testator's testamentary intentions because of a clerical error or because of a failure to give effect to the testator's instructions; and

(d) the proposed rectification is in a form that gives effect to the testator's intentions.[5]

1. There must be evidence of the testator's actual testamentary intentions and that such intentions were the subject of instructions given for the drafting of the will. The court must have an evidentiary basis for making findings as to the content of the instructions given.[6]
2. The evidence of intention must go to the instructions that the testator gave, and not the testator's intentions in general. That will include the evidence of the person who drafted the will.[7]
3. It has been said that a plaintiff bears a heavy onus to rebut the presumption which arises from the due execution of a will[8] and the plaintiff needs to place all the relevant evidence before the court. However, the ultimate question is whether the requirements of the section are satisfied on the balance of probabilities.[9]

1. Mrs Stephenson died on 22 January 2019.
2. Ms Shirdon is the daughter of Mrs Stephenson.
3. The second defendant, William Stephenson (known as Rick) (Mr Stephenson), was the de facto partner of Mrs Stephenson at the time she made the will and at the time of her death. Mr Stephenson changed his name to Stephenson by deed poll.
4. Mrs Stephenson was the sole registered proprietor of 13 Cotula Way, Canning Vale (Cotula Way) at the time of her death.
5. On 16 August 2018, Mrs Stephenson executed the Will before two witnesses, Edwin and Elizabeth Brook both of 3 Karri Way, Ferndale.
6. At the time of making her will, the residents at Cotula Way were:

(3) William Cox (known as Billy) who was Mrs Stephenson's ex‑husband who suffered from dementia; and

(4) Douglas Quarman (known as Doug), who was Billy's carer.

1. On 20 June 2018, David Endersby, who was an unpaid paralegal working for Vibe Legal, attended on Mrs Stephenson and Mr Stephenson to take instructions for the preparation of their wills. Mr Endersby's affidavit deposed that on 20 June 2018:

(1) Mrs Stephenson told Mr Endersby that Billy and his carer, Doug, were to be to be allowed to live in the house at Cotula Way; and

(2) Mr Endersby 'came to assume' that Mrs Stephenson was otherwise leaving her whole estate to Rick (who Mr Endersby believed was her husband) under mirror wills.

1. Whilst I can understand how Mr Endersby made that mistake in believing that Mr Stephenson was Mrs Stephenson's husband, given that they both had the same surname, the preparation of a will requires careful attention to such matters so as to avoid the problems that have arisen in this action.
2. Based on a misunderstanding of the instructions given, Mr Endersby prepared a draft will[10] which was drafted to the effect that:

(1) if Mr Stephenson survived Mrs Stephenson, her entire estate would go to him subject to a right of residency granted to Billy and Doug at Cotula Way; and

(2) if Mr Stephenson did not survive her, her entire estate would go to her daughter, the plaintiff, subject to a right of residency granted to Billy and Doug at Cotula Way.

1. After the draft wills were delivered to Mrs Stephenson and Mr Stephenson, Mr Endersby spoke by telephone to Mrs Stephenson who told Mr Endersby:

They are not right. They are not what I wanted. ... It is not to go to Rick. It is to go to my daughter Nicole.

1. On 18 July 2018, Mr Endersby attended on Mrs Stephenson and Mr Stephenson. Mr Endersby deposed that:
   1. On entering the house I said to Edna: 'What have I got wrong'. She replied: 'Everything'.
   2. I said: 'Can we start again from the beginning?'
   3. She said to me the man in the back room was her first husband, Bill. She said she had a second husband but he passed and Rick is her current partner.
   4. Edna said she and Rick were not married.
   5. Rick said he had changed his surname by deed poll.
   6. Edna then spoke about Nicole. She said that Nicole was the child of her son. She said she adopted Nicole and she was like a daughter to her.
   7. Edna said everything was in her name.
   8. I said, so when you pass what do you want done with your estate. She responded that it is all to go to Nicole but 'the boys' are to be allowed to live in this house for the rest of their lives.
   9. I then asked Edna if she had discussed her intentions with Nicole. She replied that she had. I asked if Nicole was happy with that. She replied that she was.
2. Mr Stephenson filed an affidavit which deposed:
   1. In 2018, Edna and I talked about preparing Wills. I cannot recall the exact dates or the exact words spoken but I had a number of conversations with Edna around that time to the effect that she had wanted to leave her entire Estate to Nicole Shirdon subject to a right for myself, William (Billy) Cox and Doug Quarman to continue to reside at our house at 13, Cotula Way, Canning Vale for the rest of their lives (House).
   2. I recall attending two meetings with Edna and David Endersby of Vibe Legal who was preparing our Wills. I cannot recall the exact dates of the meetings but believe them to have taken place around the middle of 2018.
   3. I recall that when we first received the draft Wills after the first meeting, they were not right. I telephoned Mr Endersby to tell him this. Edna also came on the phone and told Mr Endersby the draft Wills were not right and the she wanted everything to go to Nicole.
   4. We then had the second meeting with Mr Endersby to go through what we wanted. I recall Edna saying to Mr Endersby at this meeting words to the effect that she wanted everything to go to Nicole but that the 'boys' (as she often referred to me, Billy and Doug) were to be allowed to live in the House for the rest of our lives.
3. I am satisfied that the reference to 'everything to go to Nicole [Ms Shirdon]' in association with 'it is to go to my daughter Nicole' reflects Mrs Stephenson's intention that Nicole Shirdon should inherit the entirety of Mrs Stephenson's estate subject to the rights of residence.
4. The effect of those instructions was that Mrs Stephenson's entire estate was to go to Ms Shirdon subject to a right of residence being granted to Mr Stephenson, Billy and Doug for their lives at Cotula Way.
5. I acknowledge the defects in Mr Endersby's affidavit identified by the Public Trustee for example the absence of notes. Nevertheless, I am not left in any doubt what Mrs Stephenson's instructions were and accordingly what her testamentary intentions were at the time of making the Will. Had the Will been in any way complex the deficiencies identified in Mr Endersby's affidavit might have assumed more significance.
6. Mrs Stephenson's instructions were simple. She wished Ms Shirdon to inherit her entire estate with a right of residence for life to Mr Stephenson, Billy and his carer.

(1) in the event that Mrs Stephenson survived Mrs Stephenson, sch 1 applied, so that (subject to rights of residence being granted to Mr Stephenson, Billy and Doug for their lives at Cotula Way) her personal effects (as defined) would go to Ms Shirdon but there would be an intestacy as to the balance of her estate including her house at Cotula Way; and

(2) in the event that Mr Stephenson did not survive Mrs Stephenson, sch 2 applied, so that (subject to rights of residence being granted to Mr Stephenson, Billy and Doug for their lives at Cotula Way) the entire estate would go to her Ms Shirdon.

1. The disposition of Mrs Stephenson's estate under sch 1 (which applies since Mr Stephenson survived Mrs Stephenson), does not reflect the instructions given to Mr Endersby by Mrs Stephenson. Based on the instructions given, there was no basis to differentiate what Ms Shirdon received under the will whether Mr Stephenson survived or did not survive Mrs Stephenson, since under both scenarios Mrs Stephenson's instructions to Mr Endersby were that Ms Shirdon was to receive the whole of her estate.
2. Mrs Stephenson's testamentary intentions can be met by rectifying the will so as to remove sch 1 and apply sch 2 to all scenarios.

(1) Mrs Stephenson's intentions were that upon her death, subject to the rights of residence granted to Mr Stephenson, Billy, and Doug, the whole of her estate was to be left to Ms Shirdon;

(2) the intentions referred to in (a) were Mrs Stephenson's intentions at the time she made the Will;

(3) Mrs Stephenson's intentions were the subject of her instructions to her legal adviser tasked with the role of drafting her will, namely Mr Endersby;

(4) her legal adviser failed to prepare the Will in terms that reflected Mrs Stephenson's intentions despite the instructions given; and

(5) the proposed terms of rectification set out in par 1A of the amended originating summons give effect to Mrs Stephenson's intentions.

(1) The will of the late Edna Stephenson dated 16 August 2018 (Will) be rectified pursuant to s 50 of the Wills Act 1970 (WA) so that:

(a) clause 4 of the Will be amended so as to delete:

(i) the word 'if' at the commencement of that clause;

(iii) the following words in sub‑clause (b) of clause 4:

(b) Schedule 1 of the Will be deleted in its entirety.

(2) The plaintiff file a sealed copy of this order with her application for a grant of probate in respect of the Will and the Registrar attach a certified copy of the sealed order to any grant of probate made in respect of the Will.

(3) The plaintiff's costs of this application be paid out of the estate of the deceased once a grant of probate has been made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] In the Estate of Josef Bernhard Nies (dec'd) [2014] SASC 93 [28] ‑ [29]; see also the commentary of the authors of Wills Probate & Administration Western Australia [24,245.10].

[2] Douglas v Douglas [2017] WASC 184 [17]; Vescio v Bannister [2010] NSWSC 1274 [11] - [15]; Palethorpe v The Public Trustee of Queensland [2011] QSC 335 [21] ‑ [22].

[3] Vescio v Bannister [12] ‑ [15]; Palethorpe v The Public Trustee of Queensland [18]; Estate of Grahame David Wright [2016] NSWSC 1779 [37].

[4] ANZ Trustees Ltd v Hamlet [2010] VSC 207 [3]; Palethorpe v The Public Trustee of Queensland [15], [18]; Vescio v Bannister [12] - [15]; cf Estate of Grahame David Wright [2016] NSWSC 1779 [40] ‑ [44] where the court held that rectification can be made out of an abundance of caution to reflect the construction given to the will by the court.

[7] Wills Probate & Aministration Western Australia [24,245.20.15].

[8] Lauder v Lauder [25]; Re Prevost [2004] VSC 537 [17]; Palethorpe v The Public Trustee of Queensland [26].

[9] Hinds v Collins [2006] 1 Qd R 514; [2005] QSC 362.