Valerie Elizabeth Dawson v Terrence Gregory Brazier, Kenneth John Brazier, Anthony Fletcher Brazier, Patricia Margaret Faint and Josephine Louise O'Brien

Judgment 1These proceedings involve an application brought by one of the executors of the Estate of the late Henry Fletcher Brazier ("the deceased") for, inter alia, an order that clause 3(d) of the deceased's will dated 13 March 2009 ("the Will") be rectified by adding the words "to be paid out of the monies held by me in banks or other financial institutions" after the words "(250,000) in that clause. I granted leave to file these proceedings in Court to be heard together with five other proceedings brought by five of the deceased's children seeking orders for provision under the Succession Act (2006) NSW, with the evidence in one to be the evidence in the other. 2The parties have now reached a comprehensive settlement of the five other proceedings and have agreed that orders should be made by consent in these proceedings in accordance with the Summons filed on 1 February 2012. I must nonetheless be satisfied that an order for rectification is appropriate before I make that order. This judgment records my reasons for being satisfied as to that matter. 3The application for rectification is brought under s 27(1) of the Succession Act 2006 (NSW) which permits the Court to make an order to rectify a Will to carry out the testator's intention if, relevantly, the Court is satisfied that the Will does not carry out the testator's intentions because it does not give effect to the testator's instructions. Such an application must be made within twelve months after the date of the testator's death; however, the Court may extend the time for making an application if it considers it necessary and the final distribution of the estate has not been made: Succession Act s 27(2)-(3). 4The parties consent to my making an order extending the time for the bringing of the rectification application under s 27(3) of the Succession Act. The circumstances in which an extension of time should be granted under that section were considered in NSW Trustee and Guardian v Ritchie [2011] NSWSC 715, where Rein J noted that matters relevant to necessity include whether rectification is required to give effect to the testator's wishes and granted such an extension in circumstances that the defendants had not objected to the exercise of the Court's jurisdiction. I consider that the question whether such an order is necessary is also to be determined by reference to the interests of justice and I am satisfied that such an order is necessary to allow a proper determination of the issues in the five other proceedings seeking provision from the deceased's estate, where the proper construction of the relevant clause of the Will must be determined in order to permit those proceedings to be determined. 5I turn now to the substantive application for rectification under s 27(1) of the Succession Act . The issue as to which rectification is directed turns on two paragraphs of the Will, of which Probate was granted on 10 May 2010. Clause 3(d) of the Will provides for a legacy of $250,000 to one of the deceased's sons, Mr Anthony Brazier. Clause 3(i) of the Will provides for the executors to hold the estate upon trust, relevantly: "To pay out of all other moneys held by me in banks or other financial institutions and any superannuation entitlement all of my just debts funeral and testamentary expenses and to divide the balance remaining equally among my daughters PATRICIA MARGARET FAINT, VALERIE ELIZABETH DAWSON and JOSEPHINE LOUISE O'BRIEN." 6In the other proceedings listed before me, which seek orders for provision under the Succession Act , Counsel for Ms O'Brien has foreshadowed (and Counsel for Ms Faint has noted) the possibility that the assets falling within cl 3(i) of the Will will not be available to meet any unpaid part of the legacy to Mr Anthony Brazier under cl 3(d) of the Will. The rectification sought seeks to avoid that potential outcome by making clear that the legacy to Mr Anthony Brazier under cl 3(d) of the Will is also to be paid out of monies held by the deceased in banks or other financial institutions. 7Ms Dawson, as executor of the Estate, relies on two affidavits sworn by Mr Bruce Atkinson dated 13 January 2012 and 25 January 2012. Mr Atkinson was the solicitor who prepared the Will. Mr Atkinson also provided a short further statement which he adopted when giving evidence and he was cross-examined. He was an impressive witness who gave evidence carefully and fairly acknowledged the limits to his recollection. He gave evidence of the instructions which had been given to him by the deceased in respect of the preparation of the Will, which included being provided with a marked-up copy of an earlier will and a handwritten note setting out additional aspects of the deceased's intended disposition of his assets among the intended beneficiaries, and of the process by which draft wills were prepared and reviewed by the deceased before the Will was signed by the deceased on 17 March 2009. The handwritten note which had been provided by the deceased to Mr Atkinson referred to his giving Mr Anthony Brazier the sum of $250,000 from "money which I may have at the time of my death". 8In my view, there is a compelling case for rectification of the Will under s 27 of the Succession Act , in the manner to which all parties now consent. The deceased's handwritten note closely corresponds to the relevant provisions in the final Will with the omission of the reference to "money which I may have at the time of my death" which was contained in the handwritten note in respect of the legacy to Mr Anthony Brazier but not included in the Will. Mr Atkinson's evidence was, in effect, that the omitted words were not included in the final Will because he considered that the Will would in any event operate in that manner. 9In my view, the handwritten note provides clear and convincing proof on the balance of probabilities as to the deceased's intention: Rawack v Spicer [2002] NSWSC 849 at [26]ff. There is no suggestion that the deceased had changed his intention so as to form any view that the legacy to Mr Anthony Brazier should not be paid from money which he had at the time of his death. It is plain from the deceased's handwritten note that he did not intend that the funds would be found by a proportionate or rateable contribution from non-monetary assets in the estate or that the gift would fail in the absence of a specific fund, notwithstanding that he in fact held money within his accounts from which it could have been satisfied. The fact that the legacy to Mr Anthony Brazier was to be satisfied from the same source as the legacies to Ms Patricia Faint, Ms Valerie Dawson and Ms Josephine O'Brien dealt with in cl 3(i) of the Will is indicated by the fact that the handwritten note provides in successive lines for the legacy to Mr Anthony Brazier "from money which I might have at the time of my death" and in the next line for "all other money which I may have at the time of my death" to be given in equal shares to Ms Patricia Faint, Ms Valerie Dawson and Ms Josephine O'Brien (emphasis added). It seems to me plain that the deceased intended that both legacies should be sourced from the money which he had at the time of his death and the Will failed to give effect to that intention. The form of words which will be included by rectification correspond to the concept contained in the deceased's handwritten note, in circumstances that the deceased then held substantial amounts on deposit with several Australian banks, and to the language adopted in the parallel provision of Cl 3(i) of the Will. 10It is ultimately not necessary for me to determine whether, as a matter of construction, cl 3(d) of the Will would in any event have been read so as to provide for the legacy to Mr Anthony Brazier to have been paid from the same source as the legacy under cl 3(i) of the Will. Rectification can be ordered out of an abundance of caution even if it would result in the Will having the same meaning as it would have been construed to have: Re Application of Spooner; Estate of Davis (Hodgson J, 28 July 1995, unreported). 11I am therefore satisfied that I should make the order for rectification (to which, as I have noted, all parties now consent) on that basis. Accordingly, on 3 February 2012, I made orders 1, 2, 3, 4 and 5 in accordance with the Summons filed on 1 February 2012.