Rose v Tomkins & Ors

In this decision the applicant applied for rectification of a will pursuant to s 33(1) Succession Act 1981. The court was persuaded that the will did not give effect to the testator’s instructions that her half-share of a house she owned as tenants-in-common with the first respondent pass to her children. In making the order the court provided a useful summary of the relevant principles.

Morrison and Philippides JJA and Flanagan J

21 July 2017

This matter concerned an appeal from a decision dismissing an application for rectification of a will. [2]. The deceased, Ms Jones, was in a de facto relationship with Mr Tomkins, the first respondent. [3]. She had two sons from a previous marriage, and Mr Tomkins had three children from a previous marriage. [3]. The appellant was Ms Jones’ sister and the executor of her will.

In 2015, both Ms Jones and Mr Tomkins attended upon a solicitor in order to prepare a will. [4]. Ms Jones instructed the solicitor that she wanted to ensure that, upon the passing of both Ms Jones and Mr Tomkins, a half-share in their residential home would pass to her children and a half-share would pass to Mr Tomkins’ children. [4]. Instructions were then given to the solicitor to sever the joint tenancy in respect of the home, and a transfer document was subsequently executed. [5]. Ms Jones and Mr Tomkins thereafter became tenants-in-common, each with a half-share in the house.

Pursuant to cl 6 of the will, in relation to her half-share, Ms Jones granted to Mr Tomkins the right to reside in the home, subject to certain conditions. [7]. Thereafter it would form part of her residuary estate. [7]. By cl 7, Ms Jones then gifted the residue of her estate as to one half-share to her two children and the other half-share to Mr Tomkin’s children. [8]. The effect of this was that her children would receive one half of Ms Jones’ half-share in the house, ultimately receiving only a quarter-share in the residential home.

The appellant, by application, sought rectification of cl 6, such that Ms Jones’ half interest in the residential property, instead of forming part of her residuary estate, would pass to her two sons in equal shares as tenants-in-common. [10]. The primary judge refused to grant the relief sought on the basis that the will did give effect to Ms Jones’ instructions. [19]. In coming to this conclusion, her Honour inferred from the evidence that Mr Tomkins’ will was in identical in terms to Ms Jones’ will. [12].

On appeal, the appellant argued that the evidence demonstrated that “Ms Jones’ intentions were that her half-share of the house go to her children, and that her partner’s share of the house go to his children”. [23]. The appellant submitted that the will “as drawn did not give effect to, nor was it capable of giving effect to, Ms Jones’ instructions”. [26]. This was because Ms Jones’ children “did not receive her half-share of the house after both she and her partner died … but in fact received only a one quarter interest in the remainder of the house”. [26].

Sub-section 33(1) of the Succession Act 1981 provides that a 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”: (i) “a clerical error was made; or” (ii) “the will does not give effect to the testator’s instructions”. [30].

Philippides JA, with whom Morrison JA and Flanagan J agreed, summarised the relevant principles as follows:

“(a)  The Court must ascertain the testator’s intention, that is, the actual intention of the testator reflected in the instructions given by the testator, not what would probably have been the intention in the circumstances that eventuated.

(b)   The Court must construe the provision of the will sought to be rectified.

(c)   The Court is required to compare the relevant provision of the will properly construed with the testator’s intention as ascertained.

(d)   The Court must be satisfied the relevant provision of the will does not carry out the testator’s intentions because it does not give effect to the testator’s instructions and that rectification in the terms sought would give effect to those instructions.

(e)   The Court must be so satisfied on the balance of probabilities, on clear and convincing proof.” [38].

Philippides JA noted that both Ms Jones and Mr Tomkins were “concerned that ‘their’ half-share of their home pass to their respective children after both of them died”. [39]. Further, it could not be disputed that, “by clauses 6 and 7, Ms Jones’ children did not receive the entirety of her half-share of the house after both she and her partner died … but only a one quarter interest in the remainder of the house with the other quarter interest being gift[ed] to Mr Tomkins’ children”. [42]. Her Honour therefore accepted the appellant’s submission that the will as drawn did not give effect to, nor was it capable of giving effect to, Ms Jones’ instructions. [42]. It would only be capable of doing so if her partner’s will was (and remained) in the same terms. [43].

Her Honour was therefore satisfied that rectification in the terms sought would give effect to Ms Jones’ instructions. [44]. The Court granted rectification in the terms sought by the appellants. [47].

J English