ISSUES

Whether a will should be rectified to read “my house” rather than “any real property owned by me at the date of my death” in a situation where the deceased only owned a relocatable house; and

If the will was rectified, whether exit entitlements from a retirement village lease should be construed as falling within the term “my house.”

FACTS

Thomas Henry Finch (‘the deceased’) died on 1 May 2014.

The deceased’s last will was dated 29 October 2012.

Probate was granted to the deceased’s children, Gregory Finch and Joy Bazley, and his granddaughter, Michelle Jeffress.

Disputes arose between the executors in relation to the construction of clause 4(a) of the will, which left the deceased’s real property owned at his date of death to Ms Bazley. The issue was that the deceased did not own any real property at the date of his death (or when he gave instructions to draft the will), rather, he owned a relocatable home.

Ms Bazley brought an application for the appointment of an independent administrator and indicated her intention to bring an application for rectification of clause 4(a).

Justice Dalton revoked the Grant of Probate and appointed Tim Whitney as administrator of the estate on 11 May 2017.

Mr Whitney brought an application on 5 October 2017 which sought the:

1. Extension of time for making an application for rectification^[1];
2. Rectification of clause 4(a) of the will to read “my house” rather than “any real property owned by me at the date of my death”;
3. Declaration that on the proper construction of the will the relocatable home passes in accordance with clause 4(a) of the will; or
4. Declaration as to whether the deceased’s interest in the sublease of a unit and the exit entitlement payable pass under the gift in clause 4(a) of the will.

The estate consisted of:

• No real property
• A relocatable house: $411,593.84 (purchase price)
• Exit entitlement payable under sublease of a unit in a retirement village/nursing home: $203,078 (payable to the estate)

In 2011, the deceased gave instructions to a trainee solicitor for a new will.

The deceased had handwritten amendments on a will which had been completed previously by another firm.

One handwritten note said “House – Joy Maree Bazley”

The solicitor prepared the will but it was worded to leave Ms Bazley “any real property owned by me at the date of my death”

The relocatable home was substantial, and it was not immediately apparent that it was not “real property”.

In 2012 the deceased instructed the same solicitor to make another will, which altered the residuary beneficiaries (but left the specific bequests the same).

DECISION

Issue 1: Extension of time

The law

An application to rectify a will may only be made within 6 months after the deceased’s date of death.^[2] However the court can extend this time if the court considers it appropriate and final distribution of the estate has not been made.^[3]

Application of the law

The deceased died over 3.5 years earlier;

Mr Finch’s counsel argued the extension of time should not be allowed because Ms Bazley:

1. was an executor and should uphold the will;
2. is the only person benefitting from the application;
3. had legal advice at the time and understood her right to bring an application;
4. did not explain the reasons for her delay; and

There has been prejudice to all beneficiaries as they have been locked out of their inheritance and expenses have been incurred.

Justice Lyons could not see any evidence that any person had been prejudiced, as the estate was converted to cash and invested, and no one had altered their position believing they would receive something in the will.

Weight was also given to the fact that three family provision applications had been filed and there was a claim against the estate regarding a debt.

Justice Lyons said the application for rectification was arguable and may well succeed, and therefore an extension of time was allowed.

Issue 2: Admissibility of Ms Bazley’s affidavit

Counsel sought to rely upon Ms Bazley’s affidavit in relation to the construction and rectification proceedings.

The entire affidavit was objected to for the following reasons:

1. the best evidence for the rectification proceedings was the instructions given to the solicitor by the testator;
2. use of extrinsic evidence is restricted by s33C^[4] and the intentions of the deceased cannot be used to create ambiguity.

Justice Lyons reiterated the fact that different rules apply to the admissibility of evidence with respect to the rectification and construction applications. A more rigid approach is applied to the use of extrinsic evidence in construction applications (i.e. historically only the contents of the will were considered).

In relation to the rectification application, it was considered that the affidavit contained information about the deceased intentions (at the time the will was made) which need to be compared to the terms of the will.

It must be inferred that the ‘intentions’ of the deceased correspond with the ‘deceased’s instructions.’^[5]

In relation to the construction application, the affidavit is relevant because it’s necessary to know the assets of the estate at the time the deceased died to see if they match those in the will

Justice Lyons held the affidavit of Ms Bazley was admissible in both the rectification and construction applications on the basis of the armchair principle, which permits the court to sit in the arm chair of the deceased and take account of his circumstances to determine what was meant by the will.

“No will can be analysed in vacuo”^[6]

Issue 3: Rectification

The law

The court may make an order to rectify a will to carry out the deceased’s intentions if the court is satisfied that the will doesn’t carry out the deceased’s intentions because:

1. A clerical error was made; or
2. The will does not give effect to the deceased’s instructions.^[7]

Application of the law

Does the will fail to carry out the deceased’s intentions due to a clerical error? 

1. The will is signed, therefore there is a very strong presumption that the testator knew and approved of the contents which is only rebutted by clear evidence;
2. Justice Lyons held there was no evidence of a clerical error in transcribing the instructions and the presumption that the testator knew and approved of the contents was not rebutted.

Does the will fail to carry out the deceased’s intentions because the will doesn’t carry out the instructions?

1. the word ‘house’ was used by the testator in the instructions to the solicitor;
2. Although the drafting solicitor said it was their usual practice to advise clients to draft their gifting clauses widely to avoid ademption, Justice Lyons was not prepared to accept this as at the time he was only 6 months post admission;
3. The affidavit of Ms Bazley exhibited signed documents which show that the deceased attempted to transfer the property to her;
4. The drafting solicitor attended the property, and while the property was different from a usual relocatable home (in that it was very large), it was a misunderstanding on the solicitor’s part that has resulted in the will not reflecting the instructions;
5. If the solicitor understood the nature of the property, gave the wrong advice and the will was subsequently signed, rectification may still be allowed.^[8]

On the balance of probabilities did the deceased want Ms Bazley to receive his house?

Justice Lyons held that yes, the deceased intended for Ms Bazley to receive his house.

Issue 4: Construction

The law

Evidence, including evidence of the deceased’s intentions, is admissible to help in the interpretation of the language used in the will if the language makes the will or part of it:

1. Meaningless;
2. Ambiguous; or
3. Ambiguous in light of surrounding circumstances.^[9]

Evidence of the deceased’s intentions is not admissible to establish any surrounding circumstances in point 3.^[10]

Application of the law

Construction of the words ‘my house’:

Justice Lyons said the words did not include the deceased’s interest in the exit entitlement from the retirement village at Toowoomba, but did include the house at Nerang.

Nerang remained the deceased’s house even though Toowoomba was his ‘home.’

The sublease of Toowoomba terminated on death and therefore no proprietary interest in the unit remained to pass under the house definition (as it is treated as a debt recoverable by the estate).

Justice Lyons held that the words ‘my house’ included the Nerang property only.

SUMMARY

The orders sought by Mr Whitney were granted, namely:

1. Pursuant to s 33(3)^[11], time extended to allow the application to be heard.
2. Pursuant to s 33(1)^[12], clause 4(a) of the will be rectified by deleting the words “any real property owned by me at the date of my death” to “my house.”
3. Construction of clause 4(a) of the will (as rectified) includes the deceased’s relocatable property at Nerang and not the exit entitlement from the retirement village.

Read the full decision here.

---

[1] s 33(3) Succession Act 1981 (Qld).

[2] s 33(2) Succession Act 1981 (Qld).

[3] s 33(3) Succession Act 1981 (Qld).

[4] Succession Act 1981 (Qld).

[5] Lawlor v Herd [2010] QSC 281.

[6] Perrin v Morgan [1943] AC 399.

[7] s 33(1) Succession Act 1981 (Qld).

[8] McPherson v Byrne & Ors [2012] QSC 394.

[9] s 33C(1) Succession Act 1981 (Qld).

[10] s 33C(2) Succession Act 1981 (Qld).

[11] Succession Act 1981 (Qld).

[12] Succession Act 1981 (Qld).