Lawler v Herd[2010] QSC 281

SUPREME COURT OF QUEENSLAND

HIS HONOUR:  John Baird Torrance made his last will on 8 September 2003.  In that will, he made the following dispositions, having first appointed an executor:

“3.I GIVE a life interest in my home at 3 Bauhinia Avenue, Enoggera or in any other home that I am living at the time of my death to my partner, TATSARIN LAWLER (“TATSARIN”), for her sole use and benefit subject to her surviving me for thirty (30) days.

4.I GIVE the residue of my estate to TATSARIN SHOULD HOWEVER TATSARIN predecease me or not survive me for thirty (30) days then the following provision shall apply.

5.I GIVE the whole of my estate both real and personal of whatsoever nature or kind and wheresoever situated to my trustees UPON TRUST as follows:

(a)To such of my sister’s children, DAVID WOOD, JENNIFER CARTER, GRAHAM WOOD and my brother’s children GLEN TORRANCE, IAN TORRANCE AND WAYNE TORRANCE as shall survive me and if more than one in equal shares;

(b)PROVIDED THAT if any of the persons named above fail to survive for thirty (30) days leaving a child or children living at my death or attain the age of eighteen (18) years then such child or children shall take (if more than one in equal shares) the share of my estate which his, her or their parent would have taken under this clause.”

He has now died.  He was survived by his partner, Tatsarin, and also by a number of his nephews and nieces.

His executor brings application to rectify the will.  Tatsarin brings an application for the construction of the will.  Logically, it is the executor's application which should be dealt with first.

The executor seeks to have the will rectified by inserting a paragraph between paragraphs 3 and 4 in the following terms: 

"At the end of the life interest created by paragraph 3 hereof I give my home at 33 Bauhinia Avenue Enoggera or any other home in which I am living at the time of my death to my executor as trustee upon the trusts set out in clause 5 hereof."

The executor bases the need for that rectification predominantly upon the evidence in the solicitor's file of the intention of the deceased at the time he gave instructions for that will.  His instructions are contained, at least in part, in some handwritten file notes.  They were made by Amanda Molomby.  Ms Molomby was a newly admitted solicitor who had been working at the firm, Carne Reidy Herd, Mr Torrance's solicitors, for eight days.  The notes which she took are in handwriting over some two and a half pages.  They appear to be notes made during the course of a conference with the deceased.

Unfortunately, Ms Molomby has very little recollection of taking the notes and no recollection of the interview itself.  In fact, Ms Molomby remained a solicitor for only one year and then found work in other areas of endeavour.  Her evidence was, therefore, of little assistance in understanding the notes.

The notes seem to me to record an interview which had at least two parts.  In the first part, the solicitor appears to have been discussing the options open to Mr Torrance and advising him about them.  In the second, she appears to have been taking instructions for drafting a will.

It seems that the interview began with advice on a different topic, apparently, a bankcard, and moved to the question of the will fairly quickly.  The first point noted is "wants to exclude Nick".  It is common ground that that is a reference to the deceased's stepson, that is, the son of Tatsarin.  I would take that to be referring to excluding him from benefiting from the property of the deceased.

The note then says, "Can he exclude other children - could still challenge will but not stepchildren dependants."  In fact, he did not have any other children.  There were, however, children of his siblings, his nephews and nieces, and it seems that the reference to children is to those children.  Presumably, he was advised that he could exclude them as they would not have any claim for family provision under the Succession Act.  The note "but not stepchildren dependants" I think clearly enough indicates that the family provision issue was what was under discussion.

The next item is a heading "House".  The note there says, "Life interest Tatarine, estate pays expenses."  That is fairly clearly a reference to Tatsarin and I take it to be the issue which was then under discussion.  Presumably, it was an issue of whether he should leave only a life interest to her because the next note is "Will can be challenged - (1) because (T) she has life interest and then nothing else.  Difficulty with no direct descendents & (2) not providing for adequately."  I take that to be a notation of the advice given to the deceased relating to the difficulties which could arise if the course under discussion were taken.

There then appears to be a set of notes which record, in broad terms, the property of the deceased at that time, and I should say that it is common ground that although the notes are dated 19 August 2008, that is an error by the note taker and that they should have been dated 19 August 2003.  They record property as "house $350,000”, “CBOS Union $50,000”, “British pension" against which "$100”, “$1,600” and “Isle of Man $70,000" appear, and shares (no amount is set against them).

The CBOS Union, it is common ground, was a superannuation company from which the deceased had a right to a payout and a side note to that line says, "To wife.  Check nominated beneficiary."  I was told, and it may be also in evidence, that, in fact, the deceased had nominated his wife as the beneficiary to the CBOS Union Company and that, consequently, under the terms of the policy, that money passed directly to Tatsarin.  That is relevant but it is also material to observe the deceased was considering the disposition of all of his property at this time.  In any event, at the time the notes were taken, it was a matter which had to be checked.

The notes continue:

"Wife T - house - life interest.

CUBOS - $50,000.

Pension entitlement (UK)."

There is then the note on a new line:

"If he dies she will get £2,500.  If they marry, then she gets £5,000 each year."

A side note indicates that that was apparently a reference to whether or not the deceased and Tatsarin should get married in order to increase the amount of the pension which, according to the side note, was less because of the de facto relationship.

After a gap in the notes, they continue, "Life interest in house and residue to her and rest of estate to nieces and nephews, shares, etc - unit tab."

...

It is not material precisely what those words mean.  The sentence taken by itself seems to indicate an instruction to leave a life interest in the land to Tatsarin, the residue of the estate to her, but to leave the other parts of the estate, including the shares and whatever else may be in it, to the nieces and nephews.  That would be enough to dispose of the Isle of Man funds, the shares and anything else to the nieces and nephews.

The problem then comes in the notes which then read, "Then after she dies to nieces and nephews."  Those words, according to the executor, indicate an intention that it was, in fact, the remainder interest in the land which was to go to the nieces and nephews and the expression "residue to her" was, in fact, intended to relate to that remainder interest, in other words, a misuse of the term "residue".  That, it is suggested, is consistent with the intention of at least substantially excluding the possibility that Nick would inherit the land after his mother's death.

There is then a record of advice given by the solicitor.  "J", that is, the deceased, "must balance between T and Nick not getting anything.  Therefore, balance these against T challenging will."  At this point, it seems that the options are still under discussion.

The notes continue, "Issue therefore is N" - presumably Nick - "not getting anything vs (against) T challenging will.  Therefore, will take risk."  That certainly sounds like a conclusion.  Unfortunately, it is not clear from the notes which risk it was decided would be taken, the risk of a challenge to the will or the risk of Tatsarin leaving the property to Nick.

The notes then follow with other matters not relevant but on the next page appears the sentence, "Risk is T's challenge."  That suggests that the earlier decision was to take the risk of Tatsarin challenging the will.  That would suggest an intention to leave her only a life interest in the light of the earlier notes.

The notes go on to refer to the production an enduring power of attorney, to the fees and to a final matter under the heading "Major concern."  "Is Nick - police officer - who has threatened [the deceased] requiring police to be called, therefore, no bequest in will."  There is then a note, "Next draft wills" and that seems to be a note by the solicitor to herself to proceed to make a draft.

It is worth observing that the instruction is that there is to be no bequest to Nick in the will but not that there is to be excluded the possibility of Nick inheriting anything of the testator's property from his mother.

Those notes indicate, certainly, an antipathy to Nick.  They are not by themselves sufficient to infer the precise instructions which were given for the drafting of the will.  Further enlightenment is to be found in the draft will which was produced by the solicitor.  It provided in cl 3 to 6:

“3.(a)I GIVE a life interest (“the term”) in my home at 3 Bauhinia Avenue, Enoggera or in any other home that I am living at the time of my death to my partner, TATSARIN LAWLER (“TATSARIN”), for her sole use and benefit subject to her surviving me for thirty (30) days.

(b)At the end of the term, the unallocated balance of the fund shall then be distributed in accordance with the succeeding clauses of this Will.

(c)My estate must:

1.pay the rates, taxes, insurance policies and other outgoings in respect of the assets in the fund; and

2.keep assets in the fund in repair to the reasonable satisfaction of my executors.

During the term of the life interest created by this clause, my executors may distribute the lifetime fund.

4.I GIVE the residue of my estate to TATSARIN.

5.SHOULD HOWEVER TATSARIN predecease me or not survive me for thirty (30) days then the following provision shall apply.

6.I GIVE the whole of my estate both real and personal of whatsoever nature or kind and wheresoever situated to my trustees UPON TRUST as follows:

(a)To such of my sister’s children, DAVID WOOD, JENNIFER WOOD, GRAHAM WOOD, and my brother’s children, GLEN TORRANCE and IAIN TORRANCE as shall survive me and if more than one in equal shares;

(b)PROVIDED THAT if any of the persons named above fail to survive me for thirty (30) days leaving a child or children living at my death who attain the age of eighteen (18) years then such child or children shall take (if more than one in equal shares) the share of my estate which his her or their parent would have taken under this clause.”

There was also a charging clause.  That draft was prepared probably on 21 August or perhaps a little later.  On that day, a letter was drafted which was sent on 25 August to the deceased.  It was drafted by the solicitor but would have been signed by Mr Herd, a partner in the firm.  So much is apparent from the evidence and the ciphers on the letter.  Relevantly, it stated:

“Your Will

We have prepared your draft Will according to your instructions and now enclose it for your consideration. Please let me know of any changes or additions you may wish to make.

Nick

We note that you do not wish Nick to benefit under your Will. We discussed the possibility that Nick might receive some of your residual estate from Tatsarin.

You could prevent this by not providing for Tatsarin. We then considered the situation where, if you choose not to provide for Tatsarin in your Will, she might challenge it. In balancing these two concerns you decided to provide for Tatsarin in the hope that she does not distribute any of your residual estate to Nick.

We also discussed the possibility of making a Memorandum of Wishes. In this document you would outline your wish that Nick not benefit in any way from your estate. This document would then be kept with your Will and it would not be read by anyone unless Nick challenged your Will.”

The last part of that passage I think gives some clue as to the purpose of the notes against the heading "Major concern".  The draft was sent with that letter.  It is unclear whether a couple of minor handwritten changes on the draft were made before or after it was sent.

The solicitor's file contains no further indication of any attendances until 8 September 2003.  On that day, the deceased met either the solicitor or Mr Herd and signed his will.  There is nothing in the evidence which enables a firm finding as to why the draft was changed to the final form.

That, I think, really sets out the evidence most centrally relevant to the questions which I have to decide.  There are also a couple of affidavits which have been tendered by relatives which refer to the relationship of the nephews and nieces with the deceased and to the likelihood of his leaving everything to his partner as compared to leaving them something.

The executor submits that I should exercise the power under s 33 of the Succession Act.  That section provides:

“33 Court may rectify a will

(1) The court may make an order to rectify a will to carry out the intentions of the 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) An application for an order to rectify a will may only be made within 6 months after the date of death of the testator.

(3) However, the court may, at any time, extend the time for making an application under subsection (2) if—

(a) the court considers it appropriate; and

(b) the final distribution of the estate has not been made.

(4) If the court makes an order to rectify a will, the court may direct that a certified copy of the order be attached to the will.

(5) If the court gives a direction under subsection (4), the court must hold the will until the certified copy is attached to it.”

It is submitted that the power to rectify does not require simply an inquiry as to the deceased's intentions at the time of the will.  I must look at those intentions and see whether they have been affected by a clerical error or failure to give effect to the deceased's instructions.

I would say at once that it does not seem to me to be open to find that there was a clerical error.  The difference between the two forms of will is quite significant and I do not think that difference can be attributed to a clerical error.

In any event, the presence or absence of clauses 3(b) and 3(c) of the draft is not the critical issue because the problem which the parties confront now would arise under either version of the will.  If the rectification application is to succeed it must be because it is demonstrated that the will does not give effect to the testator's intentions.

It would seem that that power can be exercised only by demonstrating not only that the will does not give effect to the testator's intentions but also by demonstrating what those intentions were.  That is implicit in the word "rectify".

If I were satisfied that the will did not give effect to the testator's intention but could not determine what that intention was, then, as the executor rightly conceded, there could be no rectification.

It is obvious that the dispositions looked at in their terms are very odd to a lawyer.  It makes little sense to give a life interest to someone and then give the same person the residue.  Something is wrong.  Why would one not simply give the whole of the estate in the land if that was what was to be achieved?

The executor submits that the error is in the use of the word "residue" and that the intention was simply to give the remainder.  There is very little evidence to support that view.  It is, of course, a possibility.  The solicitor was unable to say that that was her understanding at the time, and her present understanding, albeit after six years of not practising, more closely resembled the correct use of "residue" than the suggestion made by the executor.

There is, I think, some help to be found in the terms of the letter which went with the draft will to the deceased.  It records what happened at the meeting.  It records that the solicitor and the deceased "considered the situation where if you choose not to provide for Tatsarin in your will she might challenge it.  In balancing these two concerns you decided to provide for Tatsarin in the hope that she does not distribute any of your residual estate to Nick."

In my opinion, that paragraph is consistent with correct usage of terms and inconsistent with the idea that what was the subject of the instructions was to limit Tatsarin's interest to a life estate.  Of course, it does not explain the form of drafting.

It is difficult to understand why that form should have been adopted but one possibility is that there is, in fact, missing a clause providing for the creation of a fund to maintain the house while Tatsarin was alive.  The use of the word "fund" in the draft will supports the idea that there was intended to be a separate fund and there might be some sense in such an arrangement because it would mean that the balance of the estate could be distributed, rather than having a trust created over the whole of the estate continue until Tatsarin's death.

Looking at all of the evidence to which I have referred, I am not able to reach the conclusion that it was the intention of the deceased to include a provision in his will to the effect of the clause propounded by the executor.

I also note that the idea behind the executor's assertion is inconsistent with the notes to some extent.  If it were the position that the deceased's intention was to exclude Nick from all of his property via indirect inheritance from Tatsarin, then Tatsarin would have been given a life interest in all of the property.  That did not happen.  She remained the nominated beneficiary under the insurance policy, or the superannuation policy.  She received the money from the Isle of Man and there was, of course, no inhibition on what she might do with that money after receiving it.

Had the intention been to exclude Nick completely, a trust interest for life could have been created.  That was not done and does not appear to have been considered.  It suggests that the intention was not the intention which is propounded by the executor.  If that was not the intention, then one has difficulty in reading that intention into the gift for the land only or limiting that that intention to the gift for the land only.

For these reasons, I have reached the conclusion that the evidence does not support a finding that there has been a failure in the will to give effect to the testator's instructions and the application for rectification must therefore be dismissed.

Tatsarin has applied for the construction of the will as executed.  That application has been made because the executor has notified Tatsarin that his interpretation of the word "residue" in cl 4 was that it did not include the remainder interest in the land.  That interpretation was based on the fact that Tatsarin was given a specific life interest.

In the form which it finally took, the will certainly makes little sense but the lack of sense is a lack of sense to a lawyer.  Why would one bother doing it this way?  There does not seem to be any legal impediment to applying the will in the way in which it has been drafted.

Section 33C of the Succession Act provides that in a proceeding to interpret a will, evidence of intention is admissible if the language of the will makes it meaningless, ambiguous on its face or ambiguous in the light of surrounding circumstances.  Even giving the last of these the widest possible meaning, it does not seem to me that ambiguity is established.  Neither the surrounding circumstances nor the words of the will create an ambiguity.  Ambiguity refers to the existence of two or more possible meanings.  It does not refer to a situation where what has been done makes little legal sense but has only one meaning.  As long as what has been done is not meaningless in such a case, s 33C(1) is not engaged.  I note particularly subs (2) which provides that evidence of intention is not admissible to establish ambiguity.

I do not mean by that to resile from anything which I said in McCorley & Lewis (as executors of the Will of Vera Rachel Pakleppa deceased) v Pakleppa [2005] QSC 83.  Ambiguity can be derived from the surrounding circumstances but perhaps largely for reasons which I have already referred to, I am not able to identify another meaning in the present case.

The will gives a life interest to Tatsarin should she survive the deceased for 30 days, as has happened, and gives the residue to her, in effect, on the same condition.  If she had not survived the deceased for 30 days, then the whole of the estate would have gone to the nephews and nieces and the clause seems to have been drafted in that way.

One does not know how the change in the two versions of the will came about.  It is not inconceivable that when the will came to be signed it was scrutinised by the partner, Mr Herd, for the first time and a perception arose that it was unnecessarily complex and it was simplified in the way which is apparent from the foregoing.  Whatever the position, it seems to me that the interpretation of the will is clear.

The executor submitted that if the testator's intention had been anything other than to provide no more than a life interest, cl 3 would be unnecessary and meaningless.  I have already referred to a possible explanation for cl 3.  It is not meaningless, it has a meaning, but it is pointless.  That is not sufficient.

Second, the executor submitted that the testator wanted to leave his estate in two separate compartments, being the home to which he wished only to provide for the applicant by way of life interest and, secondly, the residue of the estate.  I do not think that is clear - indeed, I have not accepted that conclusion - and, finally, the executor submitted that clause 5 could stand alone and was not dependent in terms on the failure of the applicant to survive for 30 days.  Clause 4 applies clause 5 in that situation, and only in that situation.

It is therefore my conclusion that the will on its proper construction and in the events which have occurred makes Tatsarin Lawler the sole residuary beneficiary of the estate of John Baird Torrance.

...

I have amended the draft by deleting the existing paragraph 2 and adding the following:  (2) application of the executor filed 25 March 2010 dismissed; (3) order that the costs of both parties assessed on the indemnity basis be paid out of the estate.

...

HIS HONOUR:  I add liberty to apply as para 4.  With those amendments, there will be an order in accordance with the draft, initialled by me and placed with the papers.