Vescio v Bannister [2010] NSWSC 1274 | Case summary

2010/124144 SANDRA VESCIO v JAMES BANNISTER & ANOR (AS EXECUTORS OF THE ESTATE OF THE LATE BETTY TAIT) JUDGMENT 1 Betty Tait ("the deceased") died on 24 May 2009 aged 83 years. Her daughter Sandra ("Mrs Vescio") and her son Christopher ("Mr Tait") were living at her death and are still living. They are her only children. Her husband died in 2004. 2 Probate of the deceased's will dated 30 October 2007 was in due course granted to the executors named therein, Mrs Vescio and Mr Bannister (a friend). The deceased made several specific gifts. These are set out in clause 3(a) of the will. Among them is the following (clause 3(a)(vi)): "To my daughter SANDRA DOROTHY VESCIO my jewellery together with my entire interest and estate in my home known as 11 Grevillea Street, Collaroy Plateau together with all the furniture and contents therein." 3 The will continued (clause 3(b)): " THE REST AND RESIDUE of my estate after payment of all my debts, funeral and testamentary expenses for my son CHRISTOPHER ROBERT TAIT and my daughter SANDRA DOROTHY VESCIO in equal shares as tenants in common PROVIDED THAT if either of my aforementioned beneficiaries predecease me or fails to attaint a vested interest in my estate then the share of that deceased beneficiary shall be equally divided between my granddaughters SARAH TAIT, DANIELLE VESCIO and RACHEL VESCIO or the survivor of them in equal shares upon their attaining the age of eighteen years." 4 Mrs Vescio has made an application under s 27 of the Succession Act 2006 in respect of this will. The application was made within the time allowed by s 27(2). It is therefore sufficient to quote s 27(1): "(1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied 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." 5 The order claimed by Mrs Vescio is an order that clause 3(a)(vi) be rectified so as to be in the following form: "To my daughter SANDRA DOROTHY VESCIO my jewellery together with my entire interest and estate in my home at the time of my death including any accommodation bond refund from a retirement unit." 6 Mr Bannister appeared by counsel on the hearing of the application. He neither consents to nor opposes the making of the order sought. Mr Tait was cited in the proceedings and has filed a submitting appearance (except as to costs). No person other than Mrs Vescio, Mr Tait and Mr Bannister has any interest in the estate or these proceedings. 7 Before turning to the facts, I should say something about the meaning and effect of s 27 which, from 1 March 2008, replaced s 29A of the Wills Probate and Administration Act 1898 as part of amendments to succession law adopted in several Australian jurisdictions (see, for example, the corresponding provisions in s 31(1) of the Wills Act 1997 (Vic) and s 33(1) of the Succession Act 1981 (Qld)). 8 Ms Healey of counsel, who appeared for Mrs Vescio, referred to cases on the former s 29A the relevant part of which was: "If the Court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, it may order that the will be rectified so as to carry out the testator's intention." 9 The wording of the new s 27 is different in material respects, particularly because of the reference in s 27(1)(b) to "the testator's instructions". Section 29A said nothing about "instructions". 10 There appears to be only one decided case on s 27, namely, Davis Estate; Application of May [2010] NSWSC 989, a decision of Palmer J of 30 August 2010. His Honour described that as a case in which the testator's intention "clearly miscarried by a typographical error when the will was finally prepared". There was accordingly a "clerical error" within s 27(1)(a). 11 It is not suggested in the present case that any "clerical error" occurred. The rectification claim will therefore succeed only if, in terms of s 27(1)(b), the court is satisfied, first, that the will of 30 October 2007 "does not carry out the testator's intentions" and, second, that this is "because … the will does not give effect to the testator's instructions". 12 Implicit in s 27(1)(b) is an assumption that the testator gave "instructions" as to the content of the will. "Instructions" are, of their nature, communicated by one person to another with a view to compliance or obedience by that other person. It seems to follow that s 27(1)(b) cannot apply to a will composed and written by the testator personally. 13 In the present case, the will was drawn by a solicitor. There is evidence about the communication by the deceased to the solicitor of "instructions", in the sense of expression by her of her wishes as to how her estate should be disposed of by the will the solicitor was asked to prepare. The court thus has a basis for making findings as to the content of "the testator's instructions". 14 Having ascertained "the testator's instructions", the court must construe the will as executed and compare its effect, according to its proper construction, with those "instructions": ANZ Trustees Ltd v Hamlet [2010] VSC 207 at [3]; and see the course of analysis and comparison in The Public Trustee of Queensland v Smith [2008] QSC 339; [2009] 1 QdR 26. Only if some discrepancy appears can an order be made under s 27; and the only permissible order is one that causes the will to be in a form that carries out the testator's "intentions". 15 It follows that the court must also make findings about the "intentions" of the testator - necessarily, of course, the "intentions" existing when the will was made. It is those "intentions" that any rectifying order must reflect. Although the legislation does not expressly say so, it must, I think, be inferred that the "intentions" of the testator correspond, as to content, with "the testator's instructions". I say this because, in the ordinary course, a testator's intention is that his will should implement the instructions he gives for its preparation. It is with that intention that s 27(1)(b) is concerned. This seems to have been assumed in both Re Hawkes [2005] VSC 93 (at [17]) and Lawler v Herd [2010] QSC 281. 16 Mrs Vescio contends that the instructions of the deceased were incorrectly or incompletely recorded in clause 3(a)(vi) of the will, and that that clause should have provided that Mrs Vescio should have, in addition to the deceased's jewellery, the residence of the deceased owned by her at her death, whether the property in Grevillea Street owned at the date of the will and expressly mentioned or any other residence acquired in substitution for it. Clause 3(a)(vi), on its proper construction, operated in relation to the Grevillea Street house alone in such a way that the specific devise it made was liable to be adeemed by reason of any circumstance that caused that particular property no longer to exist as part of the testatrix's assets at her death. 17 That, in fact, is what happened. Early in 2009, the deceased sold the Grevillea Street house. Part of the net proceeds of sale was applied by the deceased in acquiring property and rights entitling her to occupy a retirement unit at the War Veterans Homes, Narrabeen. Such property and rights were owned by the deceased at her death. 18 The deceased's will was drawn by Mr B M Hamer, a solicitor practising at Balgowlah. His affidavit read on the application refers to his meetings with the deceased in September and October 2007 which culminated in the execution on 30 October 2007 of the will drawn by him. 19 A number of file notes made by Mr Hamer at his meetings with the deceased are in evidence. It is clear that the notes do not record all instructions given by the deceased. I say this because, taken as a whole, the notes do not reflect the whole of the dispositive provisions of the will as ultimately drawn; nor do they together deal with the whole of the estate. There is, however, one passage of particular relevance to the present matter (it appears in Mr Hamer's notes of a conference with the deceased on 24 October 2007): "If the house has been sold to fund a retirement unit, then the residue is to be divided." 20 This note co-exists with two others of relevance (the dates of which do not appear): "Daughter gets house and contents & m/v" "Name down for Anglicare unit at Warriewood". 21 In addition, there are references in Mr Hamer's notes to the deceased's wish to benefit Mrs Vescio to a greater extent than Mr Tait (by leaving the house to her and dividing the residue between them equally) and her reasons for that wish; also a reference to Mr Hamer's advice that the deceased should record those reasons in a separate note to be left with the will. 22 From the parts of Mr Hamer's notes to which I have referred, I infer that, when the deceased gave instructions for and executed her will (a) she intended that the Grevillea Street house, if owned by her at her death, should pass to Mrs Vescio; (b) she had in contemplation the possibility of relocating to retirement accommodation and making such accommodation her home; (c) she had already taken steps towards securing such accommodation at Warriewood; (d) she knew that she might (or would) have to sell the Grevillea Street house to fund the acquisition of a retirement unit; (e) she intended that, in the event of such a sale, the "residue" of the proceeds remaining after purchase of the retirement unit was to be divided between Mrs Vescio and Mr Tait; (f) she wished to benefit Mrs Vescio to a greater extent than Mr Tait (by giving her the house); but no person other than Mrs Vescio and Mr Tait was to benefit if they were both living at her death; and (g) she communicated all of items (a) to (f) above to Mr Hamer and those items thus came to form part of the deceased's "instructions". 23 Not expressly comprehended by this analysis is the fate or destination of the contemplated retirement unit itself. The deceased cannot have intended that the retirement unit should be divided between Mrs Vescio and Mr Tait. I say this because of the clear evidence of an intention to benefit Mrs Vescio to a greater extent than Mr Tait and that only the "residue", after sale of the house and purchase of the retirement unit, should be so divided: see item (e) at paragraph [22] above. 24 Another possibility is that the deceased intended that the retirement unit should not be separately disposed of but should fall into and form part of the residuary estate disposed of by clause 3(b). But this would have been inconsistent with the intention just mentioned, given that clause 3(b) effects an equal division between Mrs Vescio and Mr Tait in respect of the whole of the residuary estate. 25 In these circumstances, only three other possibilities realistically present themselves as forming part of the deceased's "instructions". The first is that there should be no disposition of the retirement unit so that there was an intestacy in respect of it (a possibility that may safely be rejected, given the obvious purport of the will as one dealing with the whole estate and the need for very clear evidence to warrant a finding that partial intestacy was to be created). The second possibility is that the retirement unit should pass to Mr Tait (a possibility that is not consistent with the desire to give Mrs Vescio a greater benefit than Mr Tait). The third possibility is that the retirement unit should pass to Mrs Vescio in place of the house. 26 It is necessary next to refer to evidence of events at the time of the sale of the house and the purchase of the retirement unit in early 2009. Mr Hamer acted for the deceased on those transactions. He recorded in notes made at the time (one relating to a discussion with the deceased and Mrs Vescio on 19 February 2009 and the other to a discussion with Mrs Vescio alone on 27 April 2009) a need to change the deceased's will. In the earlier note, Mr Hamer recorded: "Discussed the will. It needs to be changed." 27 In the second note, Mr Hamer wrote: "The will also needs to be changed concerning Grevillea Street." 28 In May 2009, Mr Hamer prepared a new will which reflected some changes to the dispositions in the 30 October 2007 will, including omission from clause 3(a)(vi) of the reference to the Grevillea Street property and substitution of a reference (in a differently numbered clause in favour of Mrs Vescio) to "all of the monies which will be refunded from RSL Lifecare for the residency agreement that I am a party to for Villa 1 'The Dardanelles' building at 10 Lakeshore Drive, Narrabeen". 29 The deceased was very ill and in hospital when this new form of will was prepared. She died a few days later and did not execute any will after 30 October 2007. 30 The instructions given by the deceased to Mr Hamer in September and October 2007 dealt expressly with the disposition of any residue or balance remaining after sale of the Grevillea Street house and purchase of a replacement dwelling in the form of a retirement unit. They must, in my judgment, be taken to have dealt by necessary implication with disposition of any such replacement dwelling on the footing that it was precisely that - a replacement of or substitute for the Grevillea Street house and accordingly to be treated in the same way as that house. The inference to this effect is strengthened by the fact that, after completion of the transactions of early 2009, there was express reference by the deceased to a need to make specific provision regarding the replacement or substitute and thereby to make explicit what was already implicitly part of the deceased's intentions at the time she made her will. 31 I am satisfied, therefore, that an order should be made under s 27(1)(b) of the Succession Act. It remains to consider the precise form of the order. 32 I do not think that the form of order set out at paragraph [5] above is such as "to carry out the intentions of the testator" as reflected by "the testator's instructions". The instructions, on my findings, did not refer, in an ambulatory fashion, to "my home at the time of my death" so as to relate to any home at all that might then be owned; nor did they refer to any "accommodation bond refund". The instructions referred expressly to the Grevillea Street house and contemplated no more than replacement of it by a retirement unit acquired with moneys realised from its sale. It is reasonable to infer that these instructions were to be implemented regardless of the precise form of retirement unit ownership. To refer specifically to an "accommodation bond refund" would be to inject into the "intentions" and "instructions" at the time of the making of the will an element derived from subsequent events. 33 It seems to me, therefore, that the order that s 27(1) allows to be made and the circumstances warrant is an order to the effect that the deceased's will of 30 October 2007 be rectified by adding to clause 3(a)(vi), immediately after "my entire interest and estate in my home known as 11 Grevillea Street, Collaroy Plateau": "(or in any retirement unit acquired with proceeds of the sale of that home, whatever may be the form of ownership of that unit)". 34 I will, however, hear counsel on the precise form of the order. It will also be necessary to hear submissions on costs. **********

Vescio v Bannister

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