Kay v Miller[2021] QSC 185

SUPREME COURT OF QUEENSLAND

1. [1]
   Andrea Kay, as executor of the will of Gregory James Miller (her son), makes an application for rectification of his will dated 23 February 2010 (the Will) on the basis that it does not accord with instructions given in respect of the Will. Alternatively, the applicant contends that the Court should determine that the Will be construed in a particular way.
2. [2]
   The respondent to the application is Gregory Miller’s father, who is a beneficiary under the Will and would also be a beneficiary if intestacy rules applied.  He does not oppose the present application. I raised with counsel whether the estate of Gregory Miller’s partner should be given notice of the application.  Ultimately, I was persuaded that the estate did not have an interest in the application that required it to be given notice.
3. [3]
   Gregory James Miller died in a helicopter crash on 6 September 2019.  His partner, Jocelyn Villaneuva, was with him.  Her remains were not recovered.  Their respective death certificates declare that they died on the same day.  Although extensive investigations have been carried out, a coronial inquest is yet to occur.  Jocelyn was 50 years of age at the time of her death and Gregory was 39 years of age.  It has, to date, not been possible to identify who died first. That is likely to remain the case, in which case Jocelyn is presumed to have died before Gregory.^[1]
4. [4]
   Probate of the Will was granted to the applicant on 18 February 2020 by this Court.
5. [5]
   This application has been adjourned on two occasions. The first was to enable the applicant to make submissions as to the proper law and the admissibility of a solicitor’s file note. The second occasion was for a subpoena to be issued to the solicitor, George Elias, who had taken instructions for and drafted Gregory Miller’s last will. Following Mr Elias providing an affidavit, I agreed to determine the matter on the papers. 

The Will

6. [6]
   Gregory and Jocelyn attended the firm Elias Gates and Associates, which is located in New South Wales, together. Gregory and Jocelyn both lived in New South Wales. George Elias took instructions from each of them and prepared their wills.
7. [7]
   Pursuant to clause 2, the Will provided that Jocelyn was to be the executor of the Will. Clause 3 provided for the “whole of my Estate of whatsoever kind and wheresoever situate” to be distributed primarily to his partner Jocelyn, for part of his superannuation to be left to his sister Elizabeth, for a motor vehicle to be left to his mother and stepfather, and for a motor vehicle to be left to his father.
8. [8]
   Clause 4 of the Will was in the following terms:

“In the event that my said de facto partner shall not survive me then I declare that the following provisions of this my Will shall take effect in lieu of the provisions of Clause 2 hereof.”

9. [9]
   Under clause 5 of the Will, the applicant, was appointed as executor and trustee.  Clause 6 provided for the division of “the whole of my estate of whatsoever kind and wheresoever situate” and provided for the distribution of Gregory Miller’s estate to be divided between his sister, his mother and his father, with his mother also being the beneficiary of the residue of his estate.
10. [10]
    Clause 7 of the Will provided:

“If any beneficiary under this Will dies within thirty (30) days after the date of my death the disposition of property to them under this Will shall not fail and the provisions of s 35 of the New South Wales Succession Act 2006 are expressly negatived unless there is a specific provision requiring any beneficiary under this Will to survive me for a period of thirty (30) days.”

11. [11]
    Jocelyn gave instructions for her will at the same time as Gregory. Gregory Miller was the principal beneficiary under Jocelyn’s will. Jocelyn’s will provided for what was to occur in the event that Gregory Miller did not survive her, with similar terms being adopted to clause 4 of the Will. Rectification of her will was sought by her personal representatives in New South Wales.
12. [12]
    Jocelyn and Gregory each executed their respective wills in New South Wales.

What Law Applies

13. [13]
    The Will was made in New South Wales. Gregory Miller resided in New South Wales and died in New South Wales. Gregory Miller also owned property in New South Wales.  However, he also owned property in Queensland and probate could properly be granted in Queensland.  This Court therefore has jurisdiction to determine the matter,^[2] but a question arises as to whether the proper law that would apply to any application for rectification is the law of New South Wales or Queensland.
14. [14]
    The applicable succession laws will often be determined by whether the property of the deceased person is moveable,^[3] or immovable.^[4] However, questions of construction of a will are generally determined according to the law of the testator’s domicile at the time of making the will,^[5] unless there is evidence that the testator intended some other law to apply.   That has been extended to matters as to the testator’s intention. ^[6]  Although no case has been able to be located directly on point, given rectification of a will is seeking to give effect to a party’s intention, the law to be applied is generally that of the testator’s domicile.
15. [15]
    In the present case, Gregory Miller resided in New South Wales at the time the Will was made and the Will was made in New South Wales. Clause 7 of the Will supports the fact that New South Wales was the law intended to apply.  Therefore, in my opinion, the better view is that the proper law that would apply to any application for rectification is the law of New South Wales. ^[7]
16. [16]
    There is little difference between the laws of Queensland and New South Wales as to the relevant statutory provisions that would apply where rectification of a will is sought. In my view, the outcome of the present application would not be different under either Queensland law or New South Wales law.
17. [17]
    Section 33 of the Succession Act 1981 (Qld) provides that:

“33 Court may rectify a will

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 that the will does not carry out the testator’s intentions because –

1. (a)
   a clerical error was made; or

2. (b)
   the will does not give effect to the testator’s instructions.

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

1. (a)
   the court considers it appropriate; and

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

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

18. [18]
    Section 27 of the Succession Act 2006 (NSW) is in the following terms:

“27 Court may rectify a will

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:

1. (a)
   a clerical error was made, or

2. (b)
   the will does not give effect to the testator’s instructions.

2. (2)
   A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator.

3. (3)
   However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if:

1. (a)
   the Court considers it necessary, and

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

19. [19]
    The only significant difference between the New South Wales provision and the Queensland provision is that the New South Wales provision provides for a 12 month period to make an application, whereas the Queensland provision provides for a period of six months. There is a slight difference in the provision for an extension of time being granted by the Court with the New South Wales provision providing for the extension to be “necessary” whereas the Queensland provision requires in be appropriate.  The Queensland provision is slightly less onerous.
20. [20]
    In Public Trustee of Queensland v Smith,^[8] Atkinson J at [47] stated that under s 33 of the Succession Act 1981 (Qld), the Court is required to engage in a four stage process:

1. (1)
   has a clerical error been made?

2. (2)
   does the will fail to give effect to the testator’s instructions?

3. (3)
   if either or both of the above has occurred, has this caused the will not to carry out the testator’s intentions?

4. (4)
   if so, then the court may make an order to rectify a will to carry out the testator’s intentions.

21. [21]
    The approach to the New South Wales provision is not substantively different with the principles being recently outlined by Hallen J in The Estate of Terence Byrne; Osborne v Stewart:^[9]

“I dealt with the principles that apply on the question of rectification in Estate of Aspasia Kandros [2019] NSWSC 757 relevantly at [59]–[66] as follows:

Importantly, s 27 provides that ‘[t]he Court may’. ‘May’ is permissive; it is not directory, or mandatory. There is nothing in the circumstances contemplated by the section that leads to the conclusion that the Court must rectify the Will.

It is a condition precedent to the exercise of the power in s 27 that the Court be satisfied that the Will does not carry out the will-maker’s intentions and that this satisfaction be based on one of two specified reasons, namely, either that a clerical error was made, or that the Will does not give effect to the will-maker’s instructions.

It is clear, then, that the Court must make findings about the ‘intentions’ of the testator because, until it does, it cannot be satisfied that the Will does not carry out those intentions. Thus, what it was that the will-maker intended concerning the part of the will that is to be rectified must be established. What must be shown is the actual intention, not what the intention probably would have been had the will-maker thought about the matter: Trimmer v Lax; Estate M A Fresen (unrep, NSWSC, Hodgson J, 9 May 1997) .

The intention must be examined as at the date of the Will, not the date of death: Re Estate of Spinks; Application of Mortensen and Eassie (NSWSC, Needham J, 22 August 1990, unreported) ; in the Court of Appeal in Bryan William Mortensen and Elizabeth Gedge Eassie v New South Wales (NSWCA, 12 December 1991, unreported) , at 5; Rawack v Spicer, at [27] –[28] ; and Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274 , at [14–15].

Rawack v Spicer was cited, with approval, by Barrett J in Long v Long; Estate of Ethel Edith Long [2004] NSWSC 1002 . His Honour then went on to say, at [9]:

The important point is that the court must be satisfied, according to the balance of probabilities, as to not only a negative proposition (that the testatrix did not intend the will to be in the form it eventually took) but also a positive proposition (that the testatrix intended the will to be in the form for which the plaintiff contends). This is the effect of the statute and, as Sheller JA observed in Mortensen v New South Wales (unreported, NSWCA, 12 December 1991) , the court’s task is to give effect to the language of the section without paying “over much regard to the principles evolved by equity as part of the doctrine of rectification”.

Although the standard of proof on the issue is on the balance of probabilities, clear and convincing proof is required: Re Estate of Max Frederick Dippert , at [34]; Rawack v Spicer, at [30] –[31] , quoting Hodgson J in Trimmer v Lax at 12 –13 ).

The meaning of ‘testator’s intentions’ was considered (albeit in relation to the former section) in Re Swain (Dawn) [2008] NSWSC 1343 , at [25]–[27]:

Section 29A refers to the intention of the testator. In Mortensen v New South Wales (NSWCA, 12 December 1991, unreported) Sheller JA, with whom Mahoney and Meagher JJA agreed, said that s 29A:

is available for mistakes, not for lack of vision or perception or knowledge. It is a section directed at mistakes in expressing the testator’s intentions.

In that case the testatrix had made it manifestly clear that she did not want her money to “go to the government” which for all intents and purposes meant she did not want to die intestate. However, there was a failure of one of the gifts she made and the result was that there was a partial intestacy. It was argued that the testatrix’s intentions were that no monies should go to the government, and accordingly the will should be rectified.

The Court of Appeal, like Needham J at first instance, dismissed the application. Sheller JA said that it would seem on the evidence that the will was so expressed as not to carry out the testatrix’s intentions. However, the section does not only require the court to find that fact, but also to find that the court can rectify the will “as to carry out the testator’s intention”. In the Mortensen case even though the intentions were that no monies should pass to the government, the testatrix had not indicated which of the possible options she would wish to pursue had she realised that her primary gift failed.

Accordingly, the will could not be rectified.

Thus, the three questions posed by s 27 are, first, what were the will-maker’s actual intentions with regard to dispositions in respect of which rectification is sought; second, is the will expressed so that it fails to carry out those intentions; and, third, is the will expressed as it is in consequence of either a clerical error, or a failure on the part of someone to whom the will-maker gave instructions in connection with the will, to comply with those instructions? (emphasis in original).”

22. [22]
    In Palethorpe v The Public Trustee of Queensland & Ors,^[10] Philippides J discussed the genesis of s 33 of the Succession Act 1981 (Qld), which had been the subject of legislative reforms recommended by the National Committee for Uniform Succession Laws, and the fact that s 27 of the Succession Act 2006 (NSW) was in identical terms to the Queensland provision. At [18] her Honour stated that:

“In Vescio v Bannister [2010] NSWSC 1274, Barrett J explained at [12]–[15] the need, in context of the identical New South Wales provision, for the court to be satisfied that the will, as properly construed, does not carry out the testator’s intentions:

Implicit in [the section] 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 person …

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 … Only if some discrepancy appears can an order be made under [the section]; and the only permissible order is one that causes the will to be in a form that carries out the testator’s “intentions”.

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 [the section] is concerned. This seems to have been assumed in … Lawlor v Herd [2010] QSC 281. (emphasis added)”

Evidence of the Testator’s intention

23. [23]
    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 rectify the will to establish, on the balance of probabilities, that the will does not carry out the testator’s intentions for one of the reasons set out in s 27 of the Succession Act 2006 (NSW).
24. [24]
    On its plain construction, clause 4 of the Will only provides for the provisions which follow, which on the proper construction of the Will, must refer to clauses 5 and 6 “in lieu of clause 2”.  Clause 4 does not provide for the provisions that follow to be in lieu of clause 3. Clause 3 therefore arguably remains operative, notwithstanding it purports to also provide for the distribution of the estate.
25. [25]
    Evidence as to the intentions of Gregory Miller at the time of making the Will is derived from the instructions Mr Miller gave his solicitor who drafted the Will. Gregory Miller’s instructions are addressed in the affidavit of Mr Elias.  According to Mr Elias, he could recall meeting with Gregory and Jocelyn for the purpose of obtaining instructions from each of them for the preparation of their wills, which was confirmed by his diary which showed an entry for the meeting on 19 February 2010.
26. [26]
    Mr Elias made a handwritten file note during the meeting for the purpose of recording instructions.  He believes that the file note was an accurate record of the instructions he received from Jocelyn and Gregory.  That file note in its abbreviated form relevantly states that:

“If Jocelyn predeceases ex plus trustee Mother.

Andrea Kay plus everything to my mother except ‘1968 Mustang’ plus ‘Shelby GT 500’ to father etc”

27. [27]
    Mr Elias stated he proceeded to draft the Will after being provided with some further details, which did not alter the above instructions. Jocelyn and Gregory subsequently attended upon Mr Elias to execute their wills.
28. [28]
    According to Mr Elias, his handwritten file note indicates to him that the instructions provided to him by Gregory Miller was that if Jocelyn did not survive him, then clauses 4, 5 and 6 of the Will would take effect in lieu of clauses 2 and 3 of the Will.  He states that he believes that the omission in clause 4 of the words “and Clause 3” was likely due to a clerical error by administrative staff. In that respect, he stated that he would request his administrative staff to draft the initial will after explaining to them what the will was to contain and providing them with his file note.  He also believes that there was an oversight on his behalf when proofreading the draft will and that he did not detect the omission of the words “and Clause 3”.
29. [29]
    A clerical error can be found to have occurred where the “draughtsman has never really applied his minds to words introduced or omitted and never adverted to their significance and effect.”^[11]
30. [30]
    Mr Elias’ evidence supports the fact that Gregory Miller’s intention was that his mother was to be his executor and trustee if Jocelyn died, and that his estate be distributed as set out in clause 6 of the Will in the event that Jocelyn predeceased him. Those instructions have not been carried into effect in the Will in so far as he intended the provisions that followed after clause 4, namely clauses 5 and 6 to apply in lieu of clauses 2 and 3 in the event Jocelyn predeceased him, and  that the reference to clause 3 was accidentally omitted. I am satisfied that the omission is the result of a clerical error or the failure to give effect to the testator’s instructions.
31. [31]
    The error is readily apparent given that:

1. (a)
   Clause 4 refers to “provisions” rather than a provision, which would encompass clauses 5 and 6.  Clause 6 seeks to direct what is to happen to “the whole of his estate” as does clause 3.  Both clauses cannot stand together.

2. (b)
   Clause 6 accords with the instructions given by Gregory to Mr Elias in the event Jocelyn predeceased him, which is reflected by the changes compared to clause 3.

32. [32]
    I am therefore satisfied that Gregory Miller at the time of making his will intended that the provision for distribution of his estate that was to apply in the event of Jocelyn’s death was as set out in clause 6 of the Will and not clause 3 of the Will. I am satisfied that the omission of a reference to clause 3 in clause 4 of the Will after the words “Clause 2 hereof” does not carry out Gregory Miller’s intention in its present form and that Gregory Miller intended it to refer to clauses 2 and 3.  I am further satisfied that the failure of the Will to carry out Gregory Miller’s intentions was the result of a clerical error or the failure to give effect to Gregory Miller’s instructions to Mr Elias.
33. [33]
    I am therefore satisfied that the applicant has established, pursuant to s 27 of the Succession Act 2006 (NSW) and s 33 of the Succession Act 1981 (Qld), that the Will should be rectified and that the proposed order rectifies the Will to carry out Gregory Miller’s intention, insofar as it provides for “in lieu of the provisions in clauses 2 and 3 hereof”. With the insertion of clause 3, it is plain that the “following provisions” in clause 4 refers to clauses 5 and 6,^[12]  consistent with Gregory Miller’s intentions. I do not consider that the Will needs to be rectified to provide for the words “ in clauses 5 and 6” to be inserted as the Will, as it accords with Gregory Miller’s instructions in that regard.

Extension of time

34. [34]
    The estate has not been distributed and there is no evidence of prejudice to any person in delaying the present application. An explanation for the delay in making the application has been provided, arising out of dealings with Jocelyn’s personal representatives albeit that it is somewhat convoluted.
35. [35]
    Given my findings above, an extension of time to make the application should be granted in order to correct the clerical errors made such that the Will presently does not reflect Gregory Miller’s intentions.^[13]
36. [36]
    Given the findings above, and the lack of any actual prejudice due to delay, I am satisfied that an extension of time should be granted to the applicant for the making of the application.
37. [37]
    In the circumstances it is not necessary for me to address the argument as to construction.

Orders

38. [38]
    I will therefore make the following orders:

1. The orders contained in paragraphs 1 – 3 of the order made by this Court on 18 June 2021 are vacated.
2. Pursuant to s 11 of the Jurisdiction of Courts (Cross-vesting) Act 1987 and s 27(3) of the Succession Act 2006 (NSW) this application be heard and determined notwithstanding that it was not commenced within 12 months after the date of death of the testator.
3. Pursuant to s 11 of the Jurisdiction of Courts (Cross-vesting) Act 1987 and s 27(1) of the Succession Act 2006 (NSW), the will of the deceased dated 23 February 2010 be rectified in clause 4 in one place in the clause as follows:
   1. in line 3 of the clause the words “Clause 2” be deleted and in lieu thereof the words “Clauses 2 and 3” be inserted.
4. Pursuant to ss 6 and 33(4) of the Succession Act 1981, a certified copy of this order be attached to the Grant of Probate copy of the said will on court file number BS 672/20.
5. The Applicant’s costs of the application be paid out of the estate on an indemnity basis.