Terence John McCorley and David John Lewis (as executors of the Will of Vera Rachel Pakleppa deceased) v Norman Pakleppa & Ors

[1] FRYBERG J: The applicants are the executors of the will of Vera Rachel Pakleppa who died on 12 November 2003, aged 82. The respondents, all adults, are her three surviving children (Norman, Randall and Fay), for whom Mr Oliver appeared, and the two children (Scott and Caryn) of the son (Rodney) who predeceased her, for whom Mr Liddy appeared. Probate of her will, which was dated 11 August 1995, was granted by the court on 19 April 2004. By an application filed on 18 October 2004[1], the executors seek an order that the will be rectified. As executed the will relevantly provides:

"3. I RELEASE my son NORMAN PAKLEPPA, and if he dies before me his legal personal representatives, from the debt of $70,000.00 owing to me, but not any unpaid interest on it.

4. I RELEASE my son RANDALL GEORGE PAKLEPPA, and if he dies before me his legal personal representatives, from the debt of $75,000.00 owing to me, but not any unpaid interest on it.

5. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and wheresoever situate UNTO AND TO the use of my trustees UPON TRUST and after payment of my just debts funeral and testamentary expenses to stand possessed of the balance then remaining UPON the following trusts:-

(a) To give to each of my grandchildren as shall survive me and attain the age of eighteen (18) years equal shares in twenty (20) per cent of my estate;

(b) As to the rest and residue, namely eighty (80) per cent of my estate, to divide same equally between such of my children the said NORMAN PAKLEPPA and RANDALL GEORGE PAKLEPPA and my daughter FAY VERA HANSEN as shall survive me and if more than one as tenants in common in equal shares PROVIDED ALWAYS if any child of mine shall predecease me leaving issue who shall survive me such issue shall take and if more than one as tenants in common in equal shares the share which his her or their parent would have taken under this my Will had such child or mine survived me."

The rectification sought is the deletion of the words "the said NORMAN PAKLEPPA and RANDALL GEORGE PAKLEPPA and my daughter VERA HANSEN" ("the impugned words") from cl 5(b). Scott and Caryn support the application. Norman, Randall and Fay oppose it. An attempt to resolve the dispute by mediation failed.

[2] The executors were Mrs Pakleppa's accountant and solicitor respectively. The will was prepared by the second executor, Mr Lewis, in mid-1995. Mr Lewis's firm had prepared Mrs Pakleppa's previous will in 1993. The events leading to the preparation of the 1995 will were described by Mr Lewis. He said that Mrs Pakleppa and a friend, Mr Warren Day, came to see him on 15 June 1995. She told him that she had lent $70,000 to her son Norman and $75,000 to another son Randall. She asked the position with respect to those debts in the event of her death. Mr Lewis explained that the debts would be taken into account as assets in determining the total value and the proportions of the estate. Usually they would be set off against each of the sons' entitlements under the estate. There was then a discussion about the relative positions of those two sons and the daughter Fay. Mrs Pakleppa said that Fay was quite well off because she married someone of wealth, but the boys were struggling. She thought the boys' need was greater than that of Fay. They discussed the possibility that Fay might bring an application for family provision and also what should be done about her jewellery. Mr Lewis advised she should have it valued. Mrs Pakleppa said that she would think about the will and instructed Mr Lewis to contact her insurance broker to arrange a valuation. This he did. Mr Lewis did not recall there being any mention of Rodney during the interview.

[3] Mrs Pakleppa and Mr Day again saw Mr Lewis on 14 July. She then instructed him to prepare a new will. Rodney and his children were not mentioned during that conversation and Mr Lewis had forgotten that Mrs Pakleppa had had another son. As a result of the meeting, Mr Lewis drafted a new will for her on 20 July. That draft became the will of which probate was granted. He took as his starting point the 1993 will. The latter contained nothing equivalent to paras 3 and 4 of the 1995 will. Paragraph 3 of that will was identical to para 5 of the 1995 will, save that it did not contain the impugned words. Mr Lewis described what he did:

"17. In preparing the draft will in July 1995, I understood that the substance of my instructions was to provide for the forgiveness of the debts owing by the sons Norman and Randall, but otherwise the will was to be as before. I inserted clauses 3 and 4 in the draft will, dealing with the forgiveness of the debts. When drafting clause 5(b), in relation to the residue of the estate, I named each of the three (3) children Norman, Randall and Fay. I did this of my own initiative, through an abundance of caution as I was concerned that, given that I had mentioned Norman and Randall in clauses 3 and 4, a reference to "my children" in clause 5 might mistakenly be taken to mean only those children already named. In making this amendment I was oblivious to the fact that there was a deceased child who himself had children and that the drafting of the will, compared to the 1993 Will, might be interpreted to deprive the issue of the late Rodney Pakleppa of a benefit which the earlier will may have conferred on them. As a result of having forgotten that the Deceased had a fourth child who had predeceased her at the time of drafting the 1995 will, I did not apprehend that my insertion of the names Norman Pakleppa, Randall George Pakleppa and Fay Vera Hansen into clause 5(b) of the will would do anything other than merely clarify that the reference to "children" was not limited to Norman Pakleppa and Randall George Pakleppa."

After speaking to his co-executor, Mr McCorley, Mr Lewis sent the draft will to Mrs Pakleppa.

[4] Shortly thereafter Mr McCorley went to Mrs Pakleppa's home at her request and discussed the will with her. Mr McCorley had advised her about financial affairs since the death of her husband some years earlier. The substance of the discussion was her desire to make sure that the matter of the loans to her sons Norman and Randall had been addressed in the will. There was no mention during the discussion of Rodney or his children. In cross-examination Mr McCorley said that in relation to para 5 he told Mrs Pakleppa that the will gave 20% to her grandchildren and 80% to her children. She gave no indication of not understanding that. He did not name the children. She gave no indication to him that she had read the will and he did not see her read it in his presence.

[5] On 11 August Mrs Pakleppa executed the will in the presence of Mr Lewis's former partner and that gentleman's wife.

[6] The relevant legal principles have been summarised by Ms Armitage in her helpful submission on behalf of the executors; they are accepted on all sides:

"5.3 The principles that apply to an application to omit words from a will may be summarised as follows:

• The due execution of a will raises a presumption that the testator knew and approved its contents

• The onus is on those who seek to have probate granted with words omitted to rebut the presumption of knowledge and approval of those words which arises from the due execution of the Will. The degree of proof required is proof on the balance of probabilities

• Where it is established that a Will has been read to or by a testator, the presumption that the testator knew and approved the contents of the Will is a very strong one and can be rebutted only by the clearest evidence. It is not, however, a conclusive presumption, and may be rebutted by adequate proof of mistake or of fraud

• Once those who seek to have words omitted have led evidence of mistake which displaces, on the balance of probabilities, the presumption, there is an evidentiary onus on those who seek to have the words retained in the Will to establish that the Will was read by or to the testator in order for them to have the benefit of the very strong presumption that the Testator knew and approved of those words

• A Court of Probate cannot omit a word or words which appear in a Will where the omission will cause other words of the Will to produce a different result from that which was within the knowledge and approval of the testator

• Where the draftsman has never really applied his or her mind to words introduced or omitted and never adverted to their significance and effect there is a mere clerical error on his or her part

• A testator's instructions to his solicitor to prepare a Will, or evidence of facts and circumstances immediately preceding the writing of the Will, may provide evidence sufficient to satisfy a Court as to the requisite standard that material was accidentally or inadvertently omitted from (or inserted into) the Will

• The best evidence in support of an application pursuant to section 31 of the Act is confined to the actual instructions given to the testator's solicitor or to the facts and circumstances immediately preceding the writing of the will. It is not appropriate for a court to entertain general evidence of the testator's actual intentions at earlier stages or subsequently to the completion of the will." (footnotes omitted)

[7] Putting it shortly, the case for the executors is that the impugned words were inserted by Mr Lewis of his own volition and without having been discussed with Mrs Pakleppa. There is no evidence that Mrs Pakleppa even noticed them, much less read them, and neither of her advisers referred her to them. No instructions had been given for any alteration to the dispositions to children and grandchildren. Consequently there was no reason why she should have read that clause. On the balance of probabilities the presumption which arises from due execution of the will was rebutted.

[8] On behalf of Norman, Randall and Fay, Mr Oliver submitted (in effect) that Mr Lewis's recollection of why he inserted the impugned words was based on a misunderstanding of his instructions. Those instructions, given on 14 July 1995, were evidenced by a contemporaneous diary note by Mr Lewis. A transcription of that note is annexed to these reasons for judgment.[2] The key passage in the note comprised the words following the paragraph numeral "2". Those words meant that he had been instructed to divide the 80% share of the estate among the three children named at the foot of the note. The words "as before" referred to the instructions given by Mrs Pakleppa to Mr Kohler, a solicitor employed by Mr Lewis who had prepared the 1993 will. Those instructions had also been to divide the 80% share among those three children.

[9] Unfortunately the precise instructions given to Mr Kohler were also the subject of uncertainty and dispute. The issue necessitated some examination of Mrs Pakleppa's will-making history. Following the death of her husband, Mrs Pakleppa made a new will in October 1987. At that time all of her children were still alive. By that will[3] she gave $2,000 to those of her grandchildren who should survive her and attain 18 years of age. The rest of her estate was to be divided equally between such of her four[4] children as should survive her, with the proviso that if any child should predecease her leaving issue who should survive her, such issue should take the share which their parent would have taken had that parent survived Mrs Pakleppa.[5]

[10] Some time thereafter, and before May 1993, Ronald Pakleppa died. In May 1993 Mrs Pakleppa went with her son Norman to see Mr Lewis. She gave him instructions to prepare a will. It was to leave 80% of her estate to her surviving children "including children of Rodney P dec'd"[6] and 20% to such of the grandchildren as did not take a direct benefit under the earlier provision. Mr Lewis drafted a will giving effect to those instructions and sent it to her. Evidently it did not satisfy her.

[11] Mr Kohler, who was admitted as a solicitor in 1991 and had prepared only a few wills, attended on her, either by phone or in person, on 25 June and took further instructions for a new will and an enduring power of attorney. He made a note of the instructions regarding the will. A transcription is annexed to these reasons.[7] Mr Kohler could not recall Rodney Pakleppa's name being mentioned during the meeting, nor the names Scott and Caryn. In a statement made in August 2004 Mr Kohler wrote:

"7. I have not drafted a Will for many years, and have drafted very few Wills during my legal career. I believe however that had I understood it to be the case the Scott and Caryn were to be specifically excluded from taking something under the Will I would have recorded those instructions in my diary notes. Although I cannot be certain I think it is more likely than not that I did not receive specific instructions to exclude Scott and Caryn from taking their father's share, and that the three radiating lines simply demonstrate that I understood there were 3 children."

His uncertainty was reflected in his evidence in cross-examination:

"Now, the only other thing I wanted to ask you is - and you've touched on this in your affidavit - in your handwritten notes you've got 20 per cent to grandchildren - this is the note on the 25th of June? --Yes, I see that one.

Yes, and the 80 per cent - which looks like a three way split? -- Yes.

You said in your affidavit that that would signify that she had three issue - three children? -- Well, my - my - I don't have a clear recollection. In fact I don't have any real recollection of why exactly I've put those three radiating lines down underneath the 80 per cent. My - all I can say is that having perused all the material, namely the - you know - the copy file that I've been provided with earlier and having a look at the original file now - I believe that the - the most likely explanation for those lines is that my understanding at the time was that there were three children who were to take under the will.

Yes. Sorry - 80 per cent in equal shares - that's a better way of putting it? -- That's correct. Yes."

[12] Mr Kohler made notes on a copy of the 1987 will to assist in recording his instructions. The words "Re-instate cl. 3" in his notes referred to cl 3 in that copy. In cl 3(a) of the copy he crossed out the reference to $2,000 and wrote "equal shares in twenty (20) per-cent of my estate". In cl 3(b) he inserted the words and symbols ", namely eighty (80) per cent," after the reference to the residue and he crossed out the word "four" in the expression "my four children". He also crossed out the proviso referred to above[8], but then reinstated it with the word "STET".

[13] What Mr Kohler drafted became the 1993 will. He and his client had a meeting on 29 June when she executed it and he witnessed her signature. It was his usual practice to explain what the will meant to a client and he was satisfied that Mrs Pakleppa understood the content of the will. As I have said, cl 3 was in terms identical to cl 5 of the current will, apart from the impugned words.

[14] It is common ground among the parties that under both the 1993 will and the 1995 will it was possible for a grandchild to take a share in both portions of the estate. That, it was agreed, was one change which Mrs Pakleppa made in her instructions to Mr Kohler compared with those which she gave to Mr Lewis in 1993. It was also common ground, as I understand it, that under the 1993 will (and the 1995 will if the impugned words are deleted) Scott and Caryn are entitled to their late father's share of the 80% portion of the estate. On Mr Oliver's submission that result followed from s 33 of the Succession Act 1981, whatever might be the position as a matter of interpretation apart from that section. However, submitted Mr Oliver, Mr Kohler's instructions were plainly to divide the 80% portion among the three surviving children. That, he submitted, was the plain meaning of the three-line diagram in Mr Kohler's notes.

[15] There is considerable force in that submission. Visually the notes do seem to envisage a three-way split of the 80% portion. Mr Kohler ought to have been aware of the fourth child, Rodney, from the 1987 will. On the other hand, it is unclear whether he had that awareness when he drew the diagram; and it is odd, if his instructions were to provide for a three-way split, that Mr Kohler did not carry those instructions out. The will was drafted promptly, so there could be no question of his forgetting what he had been instructed to do. His evidence does not resolve the position. His initial statement suggests his instructions were in accordance with the will which he produced, but his answers in cross-examination suggest the opposite. Ms Armitage submitted that the note "Re-instate cl. 3" suggested an intention which was reflected in the will as drafted by Mr Kohler. That might be so; but I do not think it is necessarily so.

[16] There is some other evidence which in my judgment assists in identifying Mrs Pakleppa's instructions. It comes from the affidavits of the three surviving children. In passing I record that Norman deposed that he remembered visiting Mr Lewis's office with his mother in 1993; he could not recall the date but did not dispute 14 May. His understanding of her instructions to Mr Lewis was that the 80% portion of the estate was to be divided equally between the three surviving children while Scott and Caryn were to share in the 20% portion. That understanding is plainly inconsistent with the evidence of Mr Lewis, which is strongly supported by his file note. I accept Mr Lewis's version. More important was Norman Pakleppa's evidence that on numerous occasions, particularly at her home, his mother said to him "that she loved her grandchildren and she wished to ensure that they were all treated equally." He deposed that he had a conversation in these terms with her on numerous occasions. Evidence of what she actually said is of greater weight than evidence of his understanding of what she intended.

[17] Evidence that Mrs Pakleppa desired to treat her grandchildren equally was also given by Randall Pakleppa and Fay Hanson[9]. The former deposed that on a number of occasions his mother stressed to him that all 12 of her grandchildren were to benefit equally from her estate. Mrs Hanson's evidence was to like effect. She gave an example of one conversation which she specifically recalled taking place on the verandah of her home at Hervey Bay:

"I specifically recall her saying words to the effect of 'I love all the kids, even though the little buggers don't come and see me, and I want them all to get the same'. By her use of the words, 'kids', I understood her to be referring to her grandchildren as that is the way she characteristically referred to them. In response, I asked my mother what she wanted to see the grandchildren would do with the money, and she replied, 'I don't care really, but I would like them to buy some little thing to remember me by'."

[18] One thing that is quite clear: those statements are inconsistent with Mrs Pakleppa's having given instructions that the grandchildren were to share only in the 20% portion, no matter what. It is plain that under both the 1993 will and of the 1995 will, the children of Norman, Randall and Fay would have been entitled to their respective parents' shares in the 80% portion of the estate had their parents predeceased Mrs Pakleppa. Not only did the wills so provide, but also the alterations made by Mr Kohler on the working copy of the 1987 will, where he restored the crossed out proviso with the word "STET" reflect such instructions. In my judgment the words suggest that Mrs Pakleppa's instructions would have required that all the grandchildren should be treated identically. Moreover no evidence that she had any reason to treat Scott and Caryn differently from the other grandchildren has been given.

[19] I have therefore come to the conclusion that Mrs Pakleppa instructed Mr Kohler in effect to prepare the 1993 will so that the 80% portion should be split four ways, with Scott and Caryn taking their deceased father's share.

[20] I have devoted some time to this question because it was at the heart of submissions made on behalf of the first three respondents. In my judgment, however, it does not matter what instructions Mrs Pakleppa gave to Mr Kohler. What is important is what instructions she gave for the 1995 will to Mr Lewis; in other words whether Mr Lewis misunderstood his instructions.

[21] Mr Lewis was cross-examined about his evidence quoted above and his note of his instructions.[10] In relation to his note the following exchange took place:

"You say there in point 2 re the will, otherwise to grandchildren 20 per cent; correct?-- Yes, that's so.

Three children 80 per cent as before?-- Yes, that's what's written there, yes.

Right. So isn't that instructions from Mrs Pakleppa that 80 per cent of her estate was to be divided to the three children?-- My recollection is that the substance of the instruction was that the 20 per cent to the grandchildren and the 80 per cent to the children was to be as before.

Well, you've got three children. She must have identified the three children who were to take the 80 per cent?-- I don't recollect whether she referred to my three children or whether - I mean, my recollection is that she referred to giving it to the children as before. Now-----

Well, why would you write "three children"?-- Well, we had some discussions preceding that - in the month before that - a few weeks before that - where we had discussed some aspects of the will in relation to those three children and at that stage I simply had in my mind that there were three children."

He maintained that position throughout the cross-examination. He was pressed on the point:

"I put it to you that when she came to see you for the preparation of that will she must have told you that she wanted 80 per cent to go to the three children otherwise you wouldn't have recorded it?-- Well, as I say, my recollection is that there was no discussion of a change to that provision of the will. In other words, "as before" is the sort of

description I would have used in discussion with her so apart from that it is to be "as before", yes. That's my recollection of the substance of the discussion, sir.

"As before" means a couple of things. It means - could mean that it's as before the earlier will or as before when you took initial instructions from her. Do you recall the initial instructions?-- I'm sorry, you mean the earlier instructions in 1995?

No, 1993?-- No, I didn't then. I - the "as before" as I've written it there was a reference to the previous - the existing will."

I observe that Mr Lewis had opened a new file when Mrs Pakleppa approached him in 1995. The only material from previous files on this file was a photocopy of the 1993 will.

"I can say it quite unequivocally that there was no express reference whatever to altering the earlier will in relation to the disposition to her children. ... And, as I say, my recollection is that the instruction was that - so with the exception of the provisions for the forgiveness of debt she didn't wish to make any change to the earlier will."

Mr Lewis said that he took the names and addresses of Norman, Randall and Fay not in relation to the disposition but because as executor he needed them for his file. Reverting to the reference in his note to the three children he said:

"I'd written the three children because we'd had these discussions where three children had been mentioned, but I didn't understand - and clearly that's a very fundamental change to a will. If I understood her to be changing the will in that respect I would both have double checked with her and have made a note of it. I'm quite clear that I didn't understand her to be giving me an instruction which made such a radical variation to the terms of the will."

Finally, he rejected the suggestion that he added the impugned words not of his own volition but because of instructions recorded in the diary note.

[23] I thought Mr Lewis was a careful witness who answered questions thoughtfully. I have no hesitation in accepting his evidence. In particular I am satisfied that the reference in his note to "as before" reflected an instruction to repeat the dispositive provision of the 1993 will. In other words I am satisfied that Mrs Pakleppa's intention was that this provision should be reproduced, subject only to the forgiveness of debts owing by Norman and Randall. For the reason which he gave in his affidavit, Mr Lewis did not strictly carry out that instruction.

[24] That is why I said earlier that it did not matter what instructions Mrs Pakleppa gave to Mr Kohler. Her instructions for the 1995 will were to have the dispositive provision of the 1993 will reproduced. Even if she had thought that this provision divided the 80% portion among the three surviving children, that was not the instruction she gave to Mr Lewis in 1995. What is important for the purposes of the present application is whether the will reflected her instructions in 1995. In Re Hess, Ambrose J (with whom Williams J agreed) quoted a statement which, he wrote, encapsulates one of the principles upon which words will be omitted from a will:

"As an accurate statement of principle I would adopt with respect the observation of W A Lee in Manual of Queensland Succession Law at p 41 that in probate proceedings it may not be shown that a testator did not intend to mean what the words used in his will mean but it may be shown that he did not intend to use the words that have been used. If that can be shown the words which he did not intend to use must be omitted."[11]

In my judgment the 1995 will did not say what Mrs Pakleppa intended it should say.

[25] I am satisfied on the balance of probabilities that Mrs Pakleppa did not realise that Mr Lewis had made an alteration in what was renumbered as cl 5 of the 1995 will. I doubt if she even read that clause. That was not the matter in her mind; it was not the reason for the new will. She was aged in her 70s and relied on her solicitor and accountant. Mr McCorley told her that the will left 20% of her estate to her grandchildren and 80% to her children. The presumption of knowledge and approval of the impugned words arising from the execution of the will has in my judgment been rebutted.

[26] It follows that the will should be rectified by deleting those words.

[27] The order proposed in paragraph 1 of the application includes the words "pursuant to section 31 of the Succession Act 1981 (Qld)". That section confers jurisdiction to insert material which has been accidentally or inadvertently omitted. It does not apply in the present case. Subject to the omission of those words there should be an order substantially in accordance with para 1 of the application. With formal amendments the consequential orders sought in paras 3 and 4 of the application should also be made.

[28] The application contained an alternative claim for determination of the proper construction of cl 5(b) of the will. As there will be an order substantially in terms of para 1, that claim does not arise. Because the parties are agreed upon the construction of the clause as rectified, there is no occasion to consider that construction question. I shall hear the parties on costs.

TRANSCRIPTION OF MR LEWIS'S FILE NOTE[12]

She has decided to give the jewellery to each of the children now

Do the forgiveness of debt on the basis of current indebtedness ie. $70,000 to Norman

TRANSCRIPTION OF MR KOHLER'S FILE NOTE[13]

1. g' children to get

equal shares of 20%

of estate (12 g'chn

at present).

2. Re-instate cl. 3.

20% 80%

[Tau] [ IMAGE ]

[Tau] [Tau] [Tau]

she to come in Mon.

to sign will.

[1] The last day upon which an application was permitted by s 31(2) of the Succession Act 1981.

[4] The word "four" is partly obscured on the copy tendered because Mr Kohler subsequently used the copy as a working copy and crossed the word out. However it is clearly visible through a agnifying glass.

[8] Paragraph [9].

[9] I adopt the spelling of her name used in Mrs Hanson's affidavit.

[10] Paragraph [3].

[11] [1992] 1 Qd R 176 at p 188.

[12] Paragraph [8].

[13] Paragraph [10].