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). (my emphasis)
58 Mr Mantziaris notes that those principles have been applied in numerous later cases (citing Public Trustee v Permanent Trustee Co Ltd [2003] NSWSC 556, at [13]; Re Estate of Dyranda Prevosk [2004] VSC 537, at [17]; Menna v Jacobs; Re The Estate of Catherine Nolan [2004] NSWSC 1191, at [19]-[22]; Long v Long; Estate of Ethel Edith Long [2004] NSWSC 1002, at [8]-[10]; Narsi v Bhiudi; Estate of Kalyanji [2008] NSWSC 1160, at [45]-[46]; Donnolley v Clarke [2008] NSWSC 522, at [7]; and Miskelly v Arnheim [2008] NSWSC 1075, at [25]).
59 In contending that rectification is not appropriate, Mr Wilson describes the conversation Mr Herd had with the deceased and her husband as to the name of the art gallery as one in which "the deceased said that she did not want a body with the name "National" in it as the recipient". Mr Wilson says therefore that this is not a case of there being a mistake by a solicitor in the preparation of the will; rather, that it is a case of the deceased mistakenly naming a beneficiary and adhering to that mistake when questioned about the name of the beneficiary by the solicitor.
60 Mr Wilson notes that the deceased gave written instructions for her will and that the will as executed on 7 February 2003 reflected those written instructions so far as clause 3(c) was concerned. Therefore, in the absence of suspicion attaching to the document as propounded, it is said that the deceased's execution of it must be taken as sufficient evidence of her knowledge and approval (Guardhouse v Blackburn (1866) LR 1 P&D 109 cited by Powell J in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, at 705).
61 Mr Wilson submits that, while there can be no doubt (and he accepts the court may be satisfied) that the will as expressed fails to carry out the intentions of the deceased, it is not to be overlooked that it was the deceased who nominated the beneficiary and that she adhered to the name of the beneficiary when discussing it with her solicitor. Hence, he says, the court could not be satisfied that the deceased intended something different to that which appears in the will.
62 For her part, Ms MacFarlane submits that this is a clear case for rectification. Ms Needham submits that the court can be satisfied to the proper standard that the will failed to "carry out the testator's intentions" since it is clear from the evidence that the deceased wished her gift to go to the institution which held other E. Phillips Fox paintings (and, in particular, I might add, The arbour).
63 Ms Needham submits that it is incorrect to say that the deceased did not want the gift to go to an institution with the name "National" in it. Rather, the evidence is simply that the deceased did not want the gift to go to the national gallery in Canberra. I accept that this is the thrust of the evidence given by Mr Herd of the relevant conversation.
64 Ms Needham further submits that the fact that the deceased herself was mistaken as to the name of the correct body is irrelevant. The deceased intended that half of her residuary estate should benefit the particular gallery in Victoria which held the E. Phillips Fox collection but was mistaken about the name. Ms Needham submits that the fact that the deceased "adhered to her instructions" in relation to the name of the institution does not change the fact that she had an intention to leave the funds in question to the National Gallery of Victoria. I agree.
65 Insofar as the court, on a rectification suit, applies the basic principles of rectification applied in contract cases (as observed by Young J in Re Dippert, at [17]), I note that in Commissioner for Stamp Duties (NSW) v Carlenka Pty Limited (1995) 41 NSWLR 329 (at 336 and 337), the fact that particular words were chosen but that they bore a meaning other than that which the parties intended, enabled the court to rectify the document. Sheller JA there noted with apparent approval that Brightman J, had held in In re Butlin's Settlement Trusts [1976] Ch 251 at 260-261 that rectification is available not only in a case where particular words have been added, omitted or wrongly written as the result of careless copying or the like but:
also … where the words of the document were purposely used but it was mistakenly considered that they bore a different meaning from their correct meaning as a matter of true construction. In such a case, which is the present case, the Court will rectify the wording of the document so it expresses the true intention: see Jervis v Howle and Talke Colliery Co Ltd [1937] Ch 67; Whiteside v Whiteside [1950] Ch 65 at 74 and Joscelyne v Nissen [1970] 2 QB 86 at 98.
66 His Honour noted (at 344) the opinion of Hodgson J in Bush v National Australia Bank Limited (1992) 35 NSWLR 390 (at 406) that the preponderance of authority favoured the view that rectification will not be refused merely because the mistake is as to the legal effect of the words used rather than as to the actual words used (see also McLelland AJA at 345 and Mahoney AP at 332-3 in Commissioner for Stamp Duties (NSW) v Carlenka).
67 Here, it seems to me to be abundantly clear that the deceased (by reference to her draft will notes) mistakenly thought that the art gallery which owned The arbour was known as the Art Gallery of Victoria. It was to that gallery (whatever might be its correct title) that she intended the bequest to be made. In those circumstances the execution (even with the apparent approval of it contents that this entailed) of a document incorrectly identifying the gallery in question does not preclude rectification of the will.
68 I am satisfied that the will should be rectified to reflect the actual intention of the deceased, which was not carried out by the terms of her will due to an error in the identification of the gallery to whom the bequest was intended to be made.
Issue 2 - Construction
69 In Williams v Milone [2004] NSWSC 576 (at [16] - [19]), the Court set out the principles to apply on a construction suit:
[16] First, of course, the court leans against intestacy, if any other solution can reasonably be found. Secondly, the court only supplies words (other than in a rectification suit) where it is clear that words have been inadvertently omitted, and it is clear just what sort of words (though not necessarily the exact words) should be inserted; see for instance Butlin v Butlin (1965) 113 CLR 353.
[17] In Hope v Potter (1857) 3 K & J 206, 209; 69 ER 1083, 1084 Page Wood VC noted that there were two particular situations where words could be supplied. First, where there would otherwise be an intestacy and the Court can clearly and precisely see what words should be inserted (the obvious case is where the drafter had been clearly following some sort of precedent, and one could see by looking at the precedent where there had been an omission; see eg Phillips v Rail (1906) 54 WR 517), and secondly, where there had been a series of limitations and an obvious gap.
[18] The cases where words can be inserted go beyond that but, as the High Court made clear in Butlin, and, indeed, as it has been the rule for a long period of time, words can only be inserted if the court has complete conviction that they have been omitted; see for instance Towns v Wentworth [1858] XI Moore 526; 14 ER 794 (PC).
[19] In the 11th edition of Theobald on Wills at p 642 the learned editor JHC Morris said:
With regard to supplying words in a will, the rule seems to be that where the will as it stands is clearly inconsistent, so that the choice lies between rejecting some portion of it or supplying some words, whilst at the same time the latter course will make the will consistent the court will be justified in making the necessary addition.
70 As to the presumption against intestacy, in Arnott v Leong [2009] NSWSC 187 (at [10]), the Court said:
... [There is a presumption against intestacy, namely, that the will should, if possible, on a fair and reasonable construction, be construed so as to lead to a testacy rather than an intestacy or partial intestacy. In Fell v Fell (1922) 31 CLR 268 at 275-276, Isaacs J said:
"The mind never inclines towards intestacy; it is a dernier ressort in the construction of wills" (Lord Shaw in Lightfoot v Mayberry (1914) AC 782, at p 802). "In ascertaining the intention, I ought to a certain extent - we all know what the expression means - to lean against an intestacy, and not to presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary" (Buckley LJ in Kirby- Smith v Pamell (1903) 1 Ch 483, at p 489).