Rose v Tomkins[2016] QSC 216

SUPREME COURT OF QUEENSLAND

1. This is an application to rectify a will pursuant to s 33 of the Succession Act 1981 (Qld) (the Act).  The deceased lady Cheryl Jones was in a de facto partnership with Mr Bevan Tomkins.  He had three children from a previous marriage and she had two children from a previous marriage.  They attended upon a solicitor, Ms Sophie Lever, on 13 February 2015.  Ms Lever ran a firm called Inside Out Legal Services at Maroochydore.  That solicitor deposes that:

“6.To the best of my recollection, the deceased told me that she wanted to ensure that upon the passing of both of them, a ½ share in the house would pass to her children and a ½ share in the house would pass to Mr Tomkins’ children.

7. To achieve that end, I told them that they could give each other the right to occupy the home until the surviving partner died or remarried, whereupon the house would be sold and each ½ share of the home property would pass to their respective children.

8. The deceased and Mr Tomkins agreed that they would like to ‘quarantine off the home’ and have it protected for the future so that it would eventually pass to their respective children – a ½ share to the deceased’s children and the other ½ share to Mr Tomkins children.

9. At the time of receiving their instructions, the deceased and Mr Tomkins were joint tenants of the property.  I told them it was necessary to sever the joint tenancy, and this was subsequently carried out.”

2. Ms Jones predeceased Mr Tomkins.  Her executor is her sister.  The orders she seeks are in favour of the second respondents, Ms Jones’ two sons.  They are against the interests of the first respondent, Mr Tomkins, and the three third respondents, his children.  I am satisfied that Mr Tomkins and his two daughters were served with the application and that Mr Tomkins’ son, who is under a disability, has had proper notice of the application.  They did not appear on the application, but a letter to the applicant’s solicitor opposing it was in the affidavit material.
3. I note that the application was brought within the time limited by s 33(2) of the Act.
4. Section 33(1) of the Act provides:

“33Court 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—

1. a clerical error was made; or

2. the will does not give effect to the testator’s instructions.”

5. It is apparent from the exhibits to Court Document 3, an affidavit sworn by Ms Lever, that she severed the joint tenancy and prepared wills for each of Mr Tomkins and Ms Jones, as well as preparing Enduring Powers of Attorney and Health Directives for both of them.^[1]  Ms Lever swore that she exhibited a true copy of her file but had removed from it “copies of draft wills of Mr Tomkins, as the instructions were joint to draft wills for each of them.”  This explanation is not logical.  Nothing is said as to a signed copy of the will of Mr Tomkins and whether that has been removed from the file.  It appears from page 14 of the exhibit bundle that both wills were signed and both were in the firm’s custody.  She does not depose to why no final or signed copy of Mr Tomkins will is in her file.
6. It is evident from Ms Lever’s affidavit that she consulted with Mr Tomkins and Ms Jones together; that she opened only one file to deal with instructions from both of them, and she describes their instructions as “joint”.  It is further apparent from paragraphs 6-9 of her affidavit (extracted above) that her clients, like the testators in Masci v Masci & Anor^[2] were concerned primarily that their shares in their main asset, their home, passed to their respective children after both of them died.  There is nothing on Ms Lever’s file to indicate that she received any separate instructions from Mr Tomkins.  At p 25 of the exhibit bundle is a draft of Ms Jones’ will, with Ms Lever’s note, “Same as Bevan’s” at one paragraph dealing with a bequest of household furniture. 
7. In all the circumstances, I think the only logical conclusion on the evidence before me, is that, but for clauses dealing with some personal possessions of Ms Jones, Mr Tomkins’ will was in identical terms to Ms Jones’ will.  I therefore find it was.  I cannot express any concluded opinion on whether or not in these circumstances the wills were mutual, for that issue is not before me.  Nonetheless it appears that this may well be the case.^[3]
8. Clause 6 of Ms Jones’ will made a clumsy right to reside in the home in favour of Mr Tomkins provided he paid the rates and an insurance policy on the house and kept it in repair, and provided that he did not marry or enter into a de facto relationship.  That clause provided that at the end of the right to reside, Ms Jones’ interest in the home fell into residue. 
9. Clause 7 of the will provided as follows:

“7.I GIVE the rest and residue of my estate to my trustee UPON TRUST as follows:-

1. As to  a one half share for such of them my children PETER JOSEPH JONES and PAUL EDWIN JONES as shall survive me for a period of thirty (30) days and if more than one in equal shares as tenants in common.

2. As to a one half share for such of them my said partner BEVAN WARREN TOMKINS’ children namely KAREN LEE SCOTT, NICOLE ANN KILPATRICK and MICHAEL WARREN TOMKINS as shall survive me for a period of thirty (30) days and if more than one in equal shares as tenants in common.

3. If any child of mine or my partner BEVAN WARREN TOMKINS shall predecease me or fail to survive me for the period aforesaid but leave a child or children who shall survive me for thirty (30) days such child or children shall take and if more than one in equal shares the share which his, her or their parent would have taken under this my Will had such parent survive me for thirty (30) days.”

10. If, as I infer, Mr Tomkins’ will was in the same terms as Ms Jones’ will, then Ms Jones’ instructions that when both she and Mr Tomkins died^[4] one half share of the home would pass to her children and one half share of the home would pass to his children were effectuated.  In these circumstances I do not consider that either of the statutory conditions for rectifying this will have arisen.^[5]  There was certainly no clerical error, and it seems to me that the wills did give effect to the testator’s instructions.
11. In effect the argument on behalf of the applicant was that had the solicitor chosen a different way of giving effect to her instructions, namely drafting Ms Jones’ will to leave the rest and residue to her children and drafting Mr Tomkins’ will to leave the rest and residue to his children, the children of Ms Jones would have been in a better position in the events which have happened.  Of course, had Mr Tomkins died first leaving a will in terms of that which Ms Lever drafted for him, Ms Jones’ children would be in that better position.  It is only a better position if there is doubt that the wills were mutual.
12. The applicant’s contention also assumes that Ms Jones would have been content with a situation where it was certain on her death that her children would receive a half share of the home and Mr Tomkins’ children would face whatever uncertainty resulted from the potential that he might make a new will disinheriting them.  But these were not to the instructions given to Ms Lever.  Her instructions from both Ms Jones and Mr Tomkins was that they both wished their half‑share of their home to pass to their respective children.  The way Ms Lever chose to draft the residue clause was capable of achieving that.  So was the alternative residue clause propounded by the applicant.  Whichever residue clause was used, it was necessary that the wills be mutual if the instructions of Ms Jones and Mr Tomkins were to be effected.  If there were doubt that the wills were mutual, then, depending on whether Ms Lever’s residue clause or the alternative residue clause was used, and depending upon whether it was Ms Jones or Mr Tomkins who predeceased the other, uncertainty would result for one group of children.  In the events which have occurred since the making of the will – Ms Jones predeceasing Mr Tomkins – it is Ms Jones’ children who face that uncertainty.  But that does not give the Court jurisdiction to rectify the will.  It does reflect Ms Jones’ instructions.
13. It does not seem that Ms Lever raised the question of mutual wills with Ms Jones and in particular she does not seem to have given advice that the agreement to make mutual wills ought to be documented.  The applicant did not raise the question of whether the wills were mutual in this application.
14. It does not seem that Ms Lever discussed with Ms Jones and Mr Tomkins whether to use a residue clause in terms of the one she drafted, or in terms of the alternative residue clause.  Had she done so, it may be that Ms Jones would have chosen the alternative residue clause – this will never be known.  Even if she had, at most this means that if advised differently, Ms Jones might have given different instructions, to paraphrase the words of Philippides J in Palethorpe at [58].
15. I would also refer to the fact that after Ms Jones received a copy of her will she gave instructions to Ms Lever to change various parts of it, which would ensure that some of her possessions passed to her own children rather than passing to Mr Tomkins, should she predecease him.  These instructions were quite specific and the instructions regarding property owned by Peter Jones showed that Ms Jones understood how the rest and residue clause worked in relation to chattels.^[6]  I conclude that Ms Jones had a real opportunity to ask that clause 7 of her will be changed, including in terms of the alternative residue clause, if she felt that clause 7 did not reflect her instructions.  She did not do so.^[7] 
16. The cases recognise that an applicant for rectification cannot succeed unless there is clear and convincing proof that the will does not give effect to the deceased’s instructions.^[8]  I am not convinced to the requisite standard that the applicant here has discharged this heavy burden.  I dismiss the application.