Public Trustee v Permanent Trustee Company Limited [2003] NSWSC 556

New South Wales Supreme Court

CITATION : Public Trustee v Permanent Trustee Company Limited [2003] NSWSC 556 HEARING DATE(S) : 22 May 2003 JUDGMENT DATE : 27 June 2003 JURISDICTION: Equity Division JUDGMENT OF : Davies AJ DECISION : Leave granted to amend cross-claim; Rectification of will ordered; Probate of the said will to be brought into Court for noting the said rectification upon it; Parties' costs on an indemnity basis to be paid out of the estate of the late Meh Tiap Rintoul

CATCHWORDS : Wills - whether will contained a misdescription of property - whether rectification should be ordered - whether leave to bring claim out of time should be ordered. LEGISLATION CITED : Wills, Probate and Administration Act 1898, s 29A CASES CITED : Rawack v Spicer [2002] NSWSC 849 Public Trustee (Plaintiff / Cross Defendant) PARTIES : Permanent Trustee Company Limited (First Defendant) Public Trustee of Queensland as Administrator of the Estate of the Late Margaret Langmaid (Second Defendant / Cross Claimant) FILE NUMBER(S) : SC 100288/97 COUNSEL : PH Blackburn-Hart (Cross Defendant) S Bell (Cross Claimant) SOLICITORS : Teece, Hodgson & Ward (Cross Defendant) Larcombe Legal (Cross Claimant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

Davies AJ

27 JUNE 2003

100288/97 Public Trustee v Permanent Trustee Company Limited & Public Trustee of Queensland JUDGMENT 1 HIS HONOUR: These proceedings concern a cross-claim brought with respect to the meaning and effect of the will of the late Mrs Meh Tiap Rintoul. The cross-claimant is the Public Trustee of Queensland, which is the administrator of the estate of the late Mrs Margaret Langmaid, the beneficiary in the subject clause of the will. The cross-defendant is the Public Trustee to whom probate of Mrs Rintoul's will has been granted. 2 The cross-claim was lodged as far back as 14 August 1998, in proceedings which debated whether Mrs Rintoul's will of 25 August 1980 or her will of 22 February 1989 should be admitted to probate in this country. The cross-claim could not be prosecuted until the principal proceedings were determined. Even then, problems arose because the residuary beneficiaries under the will were not properly described. A cy-pres scheme will be necessary to identify them. I have excused compliance with the Supreme Court Rules, insofar as notification and joinder of the residuary beneficiaries are concerned. 3 By the time of the hearing of the cross-claim, all major witnesses were deceased. Mrs Rintoul and Mrs Langmaid were deceased. A Mr PL Bringolf, who had assisted Mrs Rintoul with her affairs, was deceased. Dato Ronald Khoo Teng Swee, to whom Mrs Rintoul gave instructions for the will, was deceased. Moreover, the Malaysian solicitor who actually prepared the will on Dato Khoo's instructions has not been identified and no file or notes relating to the matter were retained. It was the practice of the Malaysian firm, Shearn Delamore & Co, to destroy the records of completed matters after seven years. 4 Fortunately, there are affidavits or statements from the major witnesses and a number of them were cross-examined before Young J in the principal proceedings. It has been agreed that I should take into account comments made by his Honour in his Reasons for Judgment of 29 July 1999, insofar as they flesh out the affidavit evidence which is before the Court. 5 In the earlier will dated 25 August 1980, Mrs Rintoul had left to Mrs Langmaid, who was an adopted daughter, "My property known as 366 Ocean Beach Road, Umina in the State of New South Wales". This property was Mrs Rintoul's home and it had been the home of herself and her husband. The will of 25 August 1980 also left to Mrs Langmaid a one-half share in the residuary estate. 6 The will of 22 February 1989 gave to Mrs Langmaid no interest in the residuary estate but it contained this devise: "I Give to my daughter Margaret Langmaid my house known as No 24 Harriet Street, West End, QLD Brisbane absolutely."