Re Perry[2021] QSC 97

SUPREME COURT OF QUEENSLAND

1. [1]
   HENRY J:   This application, at least as filed, sought a declaration, calculated at remedying the unintended effect of the will of Michael John Perry made in Australia on 10 October 2019, hereinafter referred to as the Australian will.  Clause 1 of that will revoked all former wills. 
2. [2]
   The difficulty which has arisen is that Mr Perry, who is now deceased, plainly did not intend to revoke two other wills of his, relating to assets held in the United Kingdom and Thailand. He had made a will in Thailand on the 13^th of September 2018.  He gifted a condominium to his daughter, Chayanud Perry, and the residue of his estate to his partner, the mother of his daughter, Pathichaya Yotchutuukan.  His partner was already the owner of a home in Thailand which Mr Perry had bought for her.  The language of that will specifically confined its operation to property of Mr Perry’s in Thailand.
3. [3]
   Some days later on the 21^st of September 2018, while still in Thailand and still using the services of the solicitor who had assisted with what I will refer to as the Thai will, Mr Perry made a will which I will refer to as the UK will.  As with the Thai will, its language specifically confined its operation to property in a particular area, namely, the United Kingdom.  It gifted a life interest in the Perry family home in Essex to Mr Perry’s handicapped brother, Barry, with the remainder of the interest to go to the residue of the estate.  In a similar vein, the bank account funds held in the United Kingdom were to be held on trust for Barry with the residue thereafter going to the residuary estate.  The residuary estate, in turn, was to go to the remaining siblings that survive Barry.
4. [4]
   The Australian will left the residue of the estate after administration to Pathichaya Yotchutuukan and Chayanud Perry. 
5. [5]
   The difficulty arising is that clause 1 of the Australian will provides:

“I hereby revoke all former wills and testamentary dispositions previously made by me and declare this to be my last will and testament.”

The unintended consequence of that clause is significant. 

6. [6]
   Ms Yotchutuukan and the Thai solicitor involved in the drafting of the Thai and UK wills have each provided powerful evidence that Mr Perry intended the UK will to operate in respect of UK property only, and the Thai will to operate in respect of Thai property only.  The evidence of his Australian solicitor does not suggest he varied that intention by the time of his Australian will.  Indeed, he did not allude to his UK and Thai assets in communications with and instructions to the Australian solicitor.  His instructions in note form listed only his Australian assets and, implicitly, only sought a will which would affect the disposition of those assets. 
7. [7]
   The unintended effect of the Australian will is that it would revoke the UK and Thai wills, resulting in a material change to the intended disposition of the deceased’s property in Thailand, though, admittedly, only as between the deceased’s partner and daughter.  More concerningly, it would deprive the deceased’s handicapped brother of his use for life of the Perry family’s UK home, and also deprive him of the intended financial support during his life provided for by the UK will.  It would also deprive his siblings in due course of their interest in their family’s home.  It is clear that in making the Australian will, the deceased did not intend this result, and, to the contrary, intended that the UK and Thai wills would remain in place to regulate the disposition of his property in the United Kingdom and Thailand.
8. [8]
   The applicant initially sought a declaration as the remedy for this unintended consequence of the Australian will’s revocation clause.  A declaration does not present as an apt remedy to interfere with rights and obligations created by the unambiguous language of a legally executed document, such as a will, and the more apt remedy is rectification – see Dillon v Henderson [2018] QSC 236. 
9. [9]
   In the hearing of the application, the applicant made oral application for rectification and for an extension of time within which to do so.  Section 33(1) Succession Act 1981 (Qld) provides:

“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.”

10. [10]
    My earlier reasons reveal, consistently with the principles discussed in Rose v Tomkins [2018] 1 Qd R 549, that I am satisfied the will did not carry out the testator’s intentions.  Given the revocation clause does not involve clerical error, the issue then is whether that clause as worded meant the will did not carry out the testator’s intentions because it did not give effect to the testator’s instructions. 
11. [11]
    There is no evidence the testator instructed that his UK and Thai wills should be revoked.  His instructions neither mentioned them nor that he held substantial overseas assets.  He was doubtless of the lay impression that his Australian will would only revoke his earlier Australian will – one made back in 2015 – and would not interfere with property the subject of the UK and Thai wills.  His lawyer did not correct that erroneous impression because she was unaware of those overseas wills and assets.
12. [12]
    The testator’s actual intention was that his Australian will would not affect the continued operation of his UK and Thai wills.  His instructions, construed in light of his lay misunderstanding, were to make a will which would only operate in respect of his Australian property.  The revocation clause of the will, unbeknown to the lawyer drafting it, did not give effect to those instructions.  It follows I am satisfied the will did not carry out the testator’s intentions because it did not give effect to his instructions. 
13. [13]
    The oral application for rectification was made two months out of time – see s 33(2).  However, the Court has power to extend time pursuant to s 33(3) if the Court considers it appropriate and a final distribution has not been made.  The delay, in part, arises from the delay in seeking rectification rather than a declaration and, in part, from this case involving overseas deponents and records and the delaying impact of the COVID-19 pandemic on gathering such evidence internationally.  It is therefore appropriate to extend time.
14. [14]
    My orders are: 

    1. (1)
       The time for making the application for rectification is extended to today. 
    2. (2)
       Pursuant to s 33(1) Succession Act 1981, the will of Michael John Perry of 10 October 2019 is rectified by adding to clause 1 after the words “previously made by me” the words “except for my wills of 13 September 2018 and 21 September 2018”. 
    3. (3)
       A certified copy of this order is to be attached to the will of Michael John Perry of 10 October 2019, pursuant to s 33(4) Succession Act 1981.