BRYAN WILLIAM MORTENSEN and ELIZABETH GEDGE EASSIE v STATE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and SHELLER JJA 9 December 1991, 12 December 1991 [1991] NSWCA 207 WILL — Testatrix died leaving no next of kin — Close attachment between testatrix and children of neighbour — Whole estate given by will to these children — Brother and two sisters — Unrelated to testatrix — Unknown to testatrix brother predeceased her — No provision in will for beneficiary not surviving testatrix Lapse — Share to Crown as bona vacantia — s29A of Wills Probate and Administration Act 1898 — Application by surviving beneficiaries — On giving instructions for will testatrix's expressed intentions — Wanted whole estate to go to three children — Not to go to "government" — No expressed intention in case of beneficiary predeceasing her — In absence of evidence of such intention application failed Mahoney JA I agree with the judgment of Sheller JA. Meagher JA I agree with Sheller JA. Sheller JA BACKGROUND This is an appeal from a decision of Needham AJ. The appellants are the executor, executrix and trustees of the estate of the late Nina Spinks who died on 2 October 1989 having executed her last will and testament on 7 September 1987. Mrs Spinks was predeceased by her husband who died on 16 July 1987. She was illegitimate and never knew who her father was. All relevant relatives on her mother's side had died before 1987, a fact of which she was aware. It followed that, in the absence of a will, her estate would pass to the Crown. By her will she appointed the appellants Bryan William Mortensen and Elizabeth Gedge Eassie her executors and trustees and gave devised and bequeathed the whole of her estate both real and personal whatsoever and wheresoever unto Peter Gedge Longworth, Victoria Gedge Young and Elizabeth Gedge Eassie in equal shares. The three named beneficiaries were the children of Stuart and Doreen Longworth. Victoria was born on 15 August 1947, Elizabeth on 8 June 1950 and Peter on 21 April 1955. Peter predeceased Nina Spinks, dying by his own hand on 6 September 1989 a fact of which Nina Spinks was never aware. Nor was she aware that for a period of over a year he had been diagnosed as having a mental illness. Peter never married. By his will he left his estate to his sisters in equal shares. RELATIONSHIP BETWEEN SPINKS AND LONGWORTH FAMILIES Nina Spinks and her husband went to live at 60 Minnamurra Road, Northbridge in 1949. At that time Stuart and Doreen Longworth lived at 51 Minnamurra Road and continued to do so until 1958 when they moved with their family to a new home at 23 Coolawin Road, Northbridge. Mr and Mrs Longworth became and remained very close friends with Mr and Mrs Spinks. The children became and remained closely attached to Mr and Mrs Spinks. His Honour found: "Mr and Mrs Spinks, neither of whom had any family of their own, became closely tied to the Longworth family. After Mr Spinks' retirement, 2 UNREPORTED JUDGMENTS in 1982, the three children, especially the two girls, spent more time in the Spinks' house. Mr Spinks' health deteriorated from about 1985, and the girls helped him and the testatrix with shopping and other errands. The evidence clearly establishes that the testatrix and the three Longworth children became very attached - she used to refer to them as 'the kids'. She seemed to look upon herself as a part of their family." At no stage has the closeness of this attachment being challenged by the Crown. CIRCUMSTANCES IN WHICH WILL WAS EXECUTED After the death of Mr Spinks, Mr Mortensen, who was Mrs Spinks' accountant, told her that it was desirable that she should make a new will, as were she not to do so, her estate would go to the government. The testatrix replied: "I don't want that to happen". His Honour found that: "While the testatrix apparently took little interest in politics, she had an aversion to governments. She considered that they caused her too great expense. She seems not to have distinguished between the State and Federal varieties referring to them indiscriminately as 'the bloody government'. She was not otherwise accustomed to the use of such language." On 2 September 1987 Mr Mortensen and Mr Davenport, a solicitor, together with the latter's clerk, Mrs Nevell, visited the testatrix for the purpose of taking instructions in relation to her husband's estate. It was then that the suggestion of the new will was made. Asked what she wanted the will to contain, Mrs Spinks nominated Mr Mortensen as executor and agreed to his suggestion that Elizabeth (now Mrs Eassie) should also be named. Asked how she wished her estate to be distributed, she said: "T want it all to go to the two girls, Vicky and Libby, and Peter". The will was duly drawn to achieve that end. Apparently there was no discussion or consideration of the possibility that any one of the beneficiaries might predecease the testatrix. The death of Peter resulted in a lapse of the gift in his favour and the consequent intestacy as to that share of the estate. APPELLANTS' APPLICATION FOR AN ORDER The appellants make this application for an order under s29A (1) of the Wills Probate and Administration Act 1898 which provides: "Tf the Court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, it may order that the will be rectified so as to carry out the testator's intention." Needham AJ dismissed the application. He was of the opinion that the use of the word "rectified" in the subsection would lead one to conclude that the equitable rules as to rectification are to be taken into account in cases under s29A and that rectification, in equity, 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. His Honour was of the view that there was no such mistake here. S29A(1) OF THE ACT S29A(1) requires as a condition of the Court exercising its discretion to make an order that the Court be satisfied that a will is so expressed that it fails to carry out the testator's intentions. Mr Officer QC, who appeared for the appellants and said all that could be said in favour of allowing the appeal, isolated some aspects of what he described as the all pervading intention of the testatrix. He said that the testatrix's intention was not merely that the estate should go to the three children but that it should go to them and no one else, that the whole estate should UBRRYAN WILLIAM MORTENSEN and ELIZABETH GEDGE EASSIE v STATE OF NEW SOUTH WALES (Sheller JA) go to them and that no part of it should go to the government. So far as this submission goes it is difficult to take exception to it. There is, I think, much to be said in the present case for the view that the will was so expressed as not to carry out the intentions of Mrs Spinks. The parties proceeded on the basis that the relevant intention was that at the date of execution of the will. The findings of fact suggest that it was very much not her intention that any part of her estate go to the government, which for present purposes, can be equated with the Crown. The problem faced however by the applicants, is that the Court's discretion, assuming it is satisfied that the will is so expressed that it fails to carry out the testator's intentions, is limited to rectifying the will in such a manner "as to carry out the testator's intention." There is nothing in the evidence which indicates what Mrs Spinks' intention was in the event of a failure of the gift to any one of the beneficiaries or for that matter to all of them. It is, in my opinion, at that point, that the application must fail. The learned Solicitor General who appeared for the State of New South Wales referred us to Report 47 of the New South Wales Law Reform Commission, Chapter 7 and particularly that part of the chapter dealing with the recommendation by the Commission which became s29A and which speaks of the existing law's stringencies in relation to the proof of circumstances giving rise to a right of rectification. In my opinion this case does not require us to express any view as to the standard of proof necessary to satisfy the evidentiary requirements for the making of an order under s29A. Indeed I think it may be productive of error in a particular case when determining whether an order should be made under s29A to pay over much regard to the principles evolved by equity as part of the doctrine of rectification. Primarily the Court is concerned with the meaning of the language of the section. The present case involves a fairly straight forward interpretation of s29A. Does the will as expressed fail to carry out the testator's intentions? Can the testator's intention be discerned to the point that an order can be made carrying it out? Should the Court exercise its discretion to make such an order? As I have said the second question must be answered no. There is no basis upon which the Court could find that the testatrix's intention was that on the failure of the gift in favour of Peter, his share should be divided equally between his two sisters. The testatrix's intention in that case is unknown. For example she may have provided that, on the death of Peter, his share go to one only of the other children. To choose between many possible choices in favour of what, in the events that have happened, is a division of the share equally between the other two children, is to do no more than guess. It is true that in the will the division between the three was to be in equal shares but I do not think that enables the Court to hold that in an event which apparently was not contemplated the testatrix's intention was that her estate be divided equally between the two surviving children. Appeal dismissed with costs. Counsel for the Appellant: D P F Officer QC / R J H Darke Counsel for the Respondent: K Mason QC / P T Taylor Solicitors for the Appellant: Isenberg Spedding and Player Solicitors for the Respondent: State Crown Solicitor