New South Wales Supreme Court CITATION : Long v Long; Estate of Ethel Edith Long [2004] NSWSC 1002 revised - 29/10/2004 HEARING DATE(S) : 21/10/04 JUDGMENT DATE : 29 October 2004 JURISDICTION: Equity Division Probate List JUDGMENT OF : Barrett J DECISION : Order for rectification of will CATCHWORDS : SUCCESSION - wills - rectification - whether testatrix giving to husband "all my personal estate of whatsoever nature or kind and wheresoever situated etc" intended to include real estate as well as personal estate LEGISLATION CITED : Wills Probate and Administration Act 1898, s.29A Application of Spooner; Estate J J Davis (unreported, NSWSC, 28 July 1995) Estate of Cross (unreported, NSWSC, 9 May 1996) Hall v Hall [1891] 3 Ch 389 CASES CITED : In re Cook; Beck v Grant [1948] Ch 212 Mortensen v State of New South Wales (unreported, NSWCA, 12 December 1991) Rawack v Spicer [2002] NSWSC 849 Swinton v Bailey (1878) LR 4 App Cas 70 Trimmer v Lax; Estate M A Fresen (unreported, NSWSC, Hodgson J, 9 May 1997) Ernest William George Long - Plaintiff PARTIES : Gregory Ernest Long and Averil Ethel White - First Defendants Miranda Jane Long, Penelope Catherine Long, Tamara Margaret Onus and Dale Kenneth White - Second Defendants FILE NUMBER(S) : SC 106102/03 COUNSEL : Mr J R Wilson SC - Plaintiff Ms P R Nash - Defendant SOLICITORS : Ebsworth & Ebsworth - Plaintiff Craddock Murray Neumann - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST BARRETT J FRIDAY, 29 OCTOBER 2004 106102/03 – ERNEST WILLIAM GEORGE LONG v GREGORY ERNEST LONG & ORS; ESTATE OF ETHEL EDITH LONG JUDGMENT 1 Ethel Edith Long died on 20 October 2001. Her last will was made on 8 March 1994. There has been no grant of probate or letters of administration. Mrs Long's husband, Ernest William George Long, survived her. By his summons filed on 16 April 2003, Mr Long claims an order under s.29A of the Wills Probate and Administration Act 1898 for rectification of the will. Mrs Long's will 2 Clause 1 of the will made on 8 March 1994 revokes earlier wills and testamentary dispositions. Clause 2 (the provision to which the rectification claim relates) reads: " PROVIDED my husband ERNEST WILLIAM GEORGE LONG shall have survived me for the period of 1 calendar month (herein called 'the said period') then I APPOINT my said husband sole executor of this my will and subject to the payout thereout of my just debts, funeral and testamentary expenses including death, estate and succession duties, if any, I GIVE DEVISE AND BEQUEATH all my personal estate of whatsoever nature and kind and wheresoever situate to which I shall be entitled or over or in relation to which I shall have any power of disposition at the time of my death to my said husband absolutely." As will be seen in due course, the rectification claim focuses on the words "all my personal estate" in this clause 2. 3 Subsequent clauses, so far as relevant, read: "3. IF my said husband should have predeceased me or shall not have survived me for the said period then PROVIDED THAT they shall have survived me for the said period [named persons are appointed executors]. 4. I DECLARE that in the interpretation of this my will or any codicil to it the expression 'my Trustees' where the context permits shall mean and include the Executor, Executors or Executrix and Trustee and Trustees for the time being hereof whether original surviving substituted or additionally appointed. 5. I DIRECT my Trustees to sell my golf clubs and associated equipment and I request that my Trustees engage the services of an expert to ensure that the values are obtained on such sale and I DIRECT that the proceeds of such sale form part of my residuary estate. 6. Subject to paragraph 2, I GIVE: (a) To my son GREGORY ERNEST LONG [specified chattels]. (b) To my daughter AVERIL ETHEL WHITE [specified chattels]. 7. SUBJECT to paragraphs 2, 5 and 6 hereof, I GIVE DEVISE AND BEQUEATH all my real and personal estate of whatsoever nature or kind and wheresoever situate to which I shall be entitled or over or in relation to which I shall have any power of disposition at the time of my death unto my Trustees UPON TRUST to sell call in and convert the same or so much thereof as shall not already consist of money into money and to stand possessed of the net proceeds of such sale, calling-in and conversion together with any ready monies of which I may die possessed UPON TRUST to pay thereout all my just debts, funeral and testamentary expenses including death, estate and succession duties, if any, and to hold the residue thereof (herein called 'my residuary estate') UPON TRUST to pay to each of GREGORY ERNEST LONG and AVERIL ETHEL WHITE during their lifetimes net income for each of them not exceeding the then current single aged pension nor exceeding in total 90% of the available income arising from the investment of my residuary estate. 8. Upon the deaths of my son GREGORY ERNEST LONG and my daughter AVERIL ETHEL WHITE I DIRECT my Trustees to divide my residuary estate equally between those of my grandchildren MIRANDA JANE LONG , PENELOPE CATHERINE LONG , MARGARET ONUS (nee Gaunson) and DALE KENNETH WHITE who survive me and attain the age of 25 years." The rectification claim and its context 4 The order Mr Long claims is: "An order pursuant to Section 29A Wills Probate & Administration Act, 1898 rectifying the Will made on 8 March 1994 by the late Ethel Edith Long by inserting the words 'real and' after the word 'my' and before the words 'personal estate' on the fifth line of Clause 2 in the said Will." 5 The only part of s.29A of the Wills Probate and Administration Act relevant to the claim is s.29A(1): "If 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." 6 Mr Long contends that it was Mrs Long's intention that, if Mr Long was living one month after her death, he should have all her "real and personal estate", not just all her "personal estate", and that, in this respect, the will, as executed, fails to give effect to Mrs Long's intention and should be rectified accordingly. 7 Apart from Mr Long, there are six persons interested under the will. They are Gregory Ernest Long (the son of Mr and Mrs Long whose affairs are subject to management under Victorian guardianship legislation), Averil Ethel White (the daughter of Mr and Mrs Long), Miranda Jane Long and Penelope Catherine Long (the children of Gregory Ernest Long) and Tamara Margaret Onus and Dale Kenneth White (the children of Averil Ethel White). These six persons are defendants in the proceedings. All but two of the defendants have consented to the making of the order sought. The exceptions are Ms White and her son. Ms White's son was served but has not entered an appearance. Ms White appeared by counsel upon the hearing of the summons and opposed the making of the order. The Legal Principles 8 The principles to be applied in cases such as this were reviewed in some detail by Campbell J in Rawack v Spicer [2002] NSWSC 849. The substance of them is succinctly stated in paragraphs [26] to [29] of his Honour's judgment: Before the power of rectification can be exercised, the court must be satisfied both that the will was so expressed that it fails to carry out the testator's intentions, and also what it was that the testator intended concerning the part of the will which is to be rectified. Even if the court is satisfied that a testator would not have wanted his property to go in the way that, in the events which have happened, a particular clause results in the property going, the court can rectify the will only if it is satisfied about what the testator actually intended to happen to his property in that particular event: Brian William Mortensen v State of New South Wales (New South Wales Court of Appeal, 12 December 1991, unreported); Re Estate of Max Frederick Dippert [2001] NSWSC 167 (Young J, 20 March 2001, unreported). 'It is not enough for the Court to have the opinion that, if the deceased had considered the possibility, she probably would have provided in favour of [a named beneficiary]. What is required is an actual intention, which has miscarried' : Trimmer v Lax (Hodgson J, 9 May 1997, unreported at 12). '... What one must look for is an error which has occurred in the transcription of the will or where one can see what the intention of the testator was but the words used have not fulfilled the intention. What one cannot do is to look at unforeseen circumstances and speculate what the testator might have done in those circumstances and then supply words to meet those circumstances.' Re Estate of Max Frederick Dippert [2001] NSWSC 167 (Young J, 20 March 2001, unreported at [17]). It is the intention of the testator at the time of making the Will that matters, not the intention at some later time: the Estate of Mina Spinks, Application of Mortensen and Eassie (Needham J, 22 August 1990, unreported); Wesley v Wesley (1998) 71 SASR 1 at 5-6. The decision of Needham J just mentioned was upheld in the Court of Appeal in Bryan William Mortensen and Elizabeth Gedge Eassie v State of New South Wales , (NSWCA, 12 December 1991 unreported). In the course of upholding the decision, Sheller JA, (with whom Mahoney and Meagher JJA agreed) said at 5; 'The parties proceeded on the basis that the relevant intention was that at the date of execution of the Will' , without any suggestion that so proceeding was inappropriate. There is some family resemblance between the principles on which a court grants rectification of a will and the principles on which an equity court grants rectification of a contract. However, '… I think it may be productive of error in a particular case when determining whether an order should be made under s 29A 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.': (Per Sheller JA, Bryan William Mortensen and Elizabeth Gedge Eassie v State of New South Wales , NSWCA, 12 December 1991, unreported, at 6)." 9 The important point is that the court must be satisfied, according to the balance of probabilities, as to not only a negative proposition (that the testatrix did not intend the will to be in the form it eventually took) but also a positive proposition (that the testatrix intended the will to be in the form for which the plaintiff contends). This is the effect of the statute and, as Sheller JA observed in Mortensen v State of New South Wales (unreported, NSWCA, 12 December 1991), the court's task is to give effect to the language of the section without paying "over much regard to the principles evolved by equity as part of the doctrine of rectification". 10 In Trimmer v Lax; Estate M A Fresen (unreported, NSWSC, Hodgson J, 9 May 1997), it was pointed out that a plaintiff in a proceeding of this kind must show the deceased's actual intention, not just what he or she would have intended if thought had been given to the matter. The earlier wills 11 To appreciate the context in which Mrs Long's will dated 8 March 1994 was drafted and executed, it is necessary to go back to 1982. In that year, both Mr Long and Mrs Long made new wills. These wills were prepared by Ebsworth & Ebsworth. Mr Long had contact with that firm in his capacity as Sydney Manager of the Union Steamship Company of New Zealand, a position from which he retired in 1984. Clause 2 of Mrs Long's 1982 will read: " I APPOINT my husband ERNEST WILLIAM GEORGE LONG to be the sole executor and trustee hereof AND I GIVE DEVISE AND BEQUEATH all my real and personal estate of whatsoever nature or kind and wheresoever situate to my said husband absolutely PROVIDED that he shall be proved to have survived me for the space of one (1) calendar month." 12 Mr Long and Mrs Long made new wills in 1986. Ebsworth & Ebsworth again acted. Clause 2 of Mrs Long's 1986 will was exactly the same as clause 2 of her 1982 will. 13 Mr Long and Mrs Long again made new wills in 1989. As previously, Ebsworth & Ebsworth drafted the wills. Clause 2 of Mrs Long's 1989 will was as follows: " PROVIDED my husband ERNEST WILLIAM GEORGE LONG shall have survived me for the period of 1 calendar month (herein called 'the said period') then I APPOINT my said husband sole Executor of this my will and subject to the payout thereout of my just debts, funeral and testamentary expenses including death, estate and succession duties, if any, I GIVE DEVISE AND BEQUEATH all my personal estate of whatsoever nature and kind and wheresoever situate to which I shall be entitled or over or in relation to which I shall have any power of disposition at the time of my death to my said husband absolutely." 14 Clause 3 of Mrs Long's 1989 will, which commenced with the words "If my said husband should have predeceased me or shall not have survived me for the said period" went on to appoint other executors and concluded: "and I DECLARE that the following provisions hereof shall take effect". 15 Dispositive provisions followed in clauses 4 and following. They benefited Mr and Mrs Long's son, daughter and grandchildren and dealt with the whole estate both real and personal. Having regard to the concluding words of clause 3, those dispositive provisions were only to have effect if Mr Long was not living one month after Mrs Long's death. 16 Ebsworth & Ebsworth who, as on the three earlier occasions, were instructed to prepare new wills for both Mr Long and Mrs Long also prepared the will to which the present claim relates. As previously, instructions were given for the preparation of new wills for both husband and wife. The relevant parts of Mrs Long's 1994 will have already been set out. 17 I have referred to this sequence of events because it shows the way in which the relevant part of Mrs Long's 1994 will evolved over time. In the 1982 and 1986 documents, the whole estate both real and personal (after payment of debts and funeral and testamentary expenses) was given to Mr Long if he was living one month after Mrs Long's death. In the 1989 will, the clause 2 provision in favour of Mr Long (provided he survived for the stated period) referred to "all my personal estate" and made no reference to real estate, at the same time making it clear (by the concluding words of clause 3) that, if Mr Long survived Mrs Long by the stated period, none of clauses 4 and following would dispose of real estate as to which, without rectification of some kind, there would be an intestacy. The 1994 will contained the same clause 2 in favour of Mr Long (that is, the form confined to "personal estate") but differed from the 1989 will in that it did not say that clauses following the clause appointing executors in default of Mr Long were to take effect only if Mr Long did not survive Mrs Long by the stated period. As a result, certain questions of construction arise in relation to the interaction of clause 2 of the 1994 will with other dispositive provisions but do not need to be addressed in these proceedings. Evidence about the preparation of the earlier wills 18 The only evidence about the preparation of the 1982 and 1986 wills comes from Mr Long who deposes merely to having given instructions to Mr Lyall, a partner of Ebsworth & Ebsworth. 19 Evidence in relation to the preparation of the 1989 wills is, however, available from the Ebsworth & Ebsworth file which is in evidence. That file was opened in August 1988 after receipt by the firm of a letter dated 22 August 1988 from Mr Long. The letter was marked for the attention of Mr McMinn, another partner of the firm, and began "Due to changed circumstances within our family it is necessary to make some alterations in my will and that of my wife. You hold the originals of these." The letter went on to detail various desires relevant to gifts in favour of the children and grandchildren of Mr and Mrs Long. 20 Implementation of the instructions in the letter of 22 August 1988 was undertaken by Ms Bizon, a solicitor employed by Ebsworth & Ebsworth. There is no evidence from Ms Bizon (who is now apparently in London) but the Ebsworth & Ebsworth file is informative. It shows a number of telephone attendances by Ms Bizon upon Mr Long in relation to the content of the proposed wills of himself and Mrs Long. Drafts were sent under cover of a letter of 28 November 1988 addressed to Mr and Mrs Long. They lived at Hawks Nest beyond Port Stephens, having moved there from Sydney after retirement. Engrossments were sent with a letter of 8 May 1989 referring to certain changes that had been made to both wills and describing the procedure for due execution. That letter was addressed to Mr and Mrs Long. On 27 May 1989, Mr Long wrote to Ebsworth & Ebsworth enclosing signed wills and asking that they be held in safe custody. Ms Bizon returned these documents to Hawks Nest with a letter dated 6 July 1989 because signatures had not been appended at the bottom of each page. She also sent new engrossments which were in due course properly executed and returned for safe keeping by means of a letter of 31 July 1989 from Mr Long. 21 The Ebsworth & Ebsworth file contains nothing suggesting that the reference to "personal estate" alone in clause 2, as drafted by Ms Bizon, was the product of any instruction to Ebsworth & Ebsworth. Nor is there any explanation of how Ms Bizon came to refer to "personal estate" rather than "real and personal estate". Preparation of the 1994 will 22 A letter dated 26 January 1994 from Mr Long conveyed the initial instructions which caused Ebsworth & Ebsworth to draft the wills of both Mr and Mrs Long executed in 1994. That letter began: "My wife and I have cause to make some urgent alterations to our wills and I undernote some amendments." 23 Ms Buntine who was, at the time, a senior associate with Ebsworth & Ebsworth, undertook the task of implementing these instructions. She gave evidence by affidavit. Ms Buntine's evidence is that Ebsworth & Ebsworth had a deed packet containing the 1982, 1986 and 1989 wills of both Mr Long and Mrs Long and that she retrieved this packet from safe custody and had regard to its content. As a first step in approaching the new instructions, she prepared for her own guidance a rough summary of the content of each of the 1989 wills. Under a heading "Current will of Ethel Long" she wrote: "H to be exor or if predeceases, Norman & Greg (son) then nephew Robert. Various specific bequests. H to get whole estate unless predeceases. Tees to hold residuary estate to pay Y therefrom ….." ("H" here means "husband".) 24 After a telephone conversation with Mr Long on 4 February 1994 to clarify certain points, Ms Buntine printed out the forms of the 1989 wills which were still on the Ebsworth & Ebsworth word processing system. Annexed to her affidavit is a copy of the form of Mrs Long's 1989 will so printed out which Ms Buntine used as a basis for drafting amendments as shown thereon in her handwriting. Clause 2 is unaltered except for the substitution of a lower case "e" for an upper case "E" at the start of the word "Executor". When the draft thus composed had been typed and printed, Ms Buntine sent it, together with a draft of a new will for Mr Long, to Mr Long and Mrs Long under cover of a letter dated 15 February 1994 addressed to both of them at their Hawks Nest address. The letter contained brief comments on each draft. The comments in relation to Mrs Long's draft included: "However, the way the Will is currently drafted, Mr Long does not have a life interest but rather inherits the entire estate should Mrs Long predecease him. If a life estate is to be incorporated in Mrs Long's Will, please let us know." 25 In due course, Ms Buntine received a message from Mr Long that the drafts were approved, whereupon she prepared engrossments and sent them to Mr and Mrs Long with a covering letter explaining how they should be executed. These, duly executed, were returned to Ebsworth & Ebsworth for safe keeping. 26 Ms Buntine says in her affidavit: "It was my intention and my understanding when I prepared the draft Will for Mrs Ethel Edith Long in the period 4 to 15 February 1994 that clause 2 of the Will dated 31 July 1989 left the whole of her estate to her husband, Ernest William George Long if he survived her and that the balance of the Will only dealt with the disposition of her estate if he did not survive her for a period of one calendar month from the date of her death. For this reason I incorporated clause 2 of the Will dated 31 July 1989 into the redrafted Will without any amendment except that I spelt 'executor' in lower case." Assessment of evidence concerning preparation of wills 27 The significant point about the events surrounding the preparation and execution of the 1989 wills is that Ebsworth & Ebsworth are not shown as having received any instruction that would have caused clause 2 of Mrs Long's will to deal with personal estate only. The evidence concerning the preparation of the 1989 will shows no reason why it was drafted in such a way that, if Mr Long survived Mrs Long by one month, all her "personal estate" (as described in an amplified way in clause 2) should pass to Mr Long but there should be an intestacy as to any remainder of her estate. This, as I have noted (see paragraph [17] above) was the effect of the concluding words of clause 3. 28 The written instructions of 22 August 1988 referred to a need for "some alterations in my will and that of my wife". It is thus clear that the then existing wills – those executed in 1986 and held by Ebsworth & Ebsworth in safe custody – were put forward as a benchmark against which the instructions of 22 August 1988 were to be understood: hence the reference in the letter of instructions to "some alterations". All the instructions in that letter and the further communications recorded in the Ebsworth & Ebsworth file refer to alterations that have no bearing whatsoever on the scheme of clause 2 of Mrs Long's 1986 will, that is, that if Mr Long was living one month after Mrs Long's death, he should have the whole estate both real and personal. 29 Given the detailed provisions with respect to the whole estate, both real and personal, made in clauses 4 and following of the 1989 will that were to apply if Mr Long was not living one month after Mrs Long's death, any apparent intention consciously to resort to the rules as to intestate succession with respect to real estate if Mr Long survived could only be described as irrational and perverse. There is nothing to show that there was any intention of Mrs Long to depart from the pattern of her 1982 and 1986 wills, so far as benefaction of Mr Long was concerned. Indeed, insofar as Mrs Long's intentions were communicated to Ebsworth & Ebsworth by Mr Long, there was a positive intention to adhere to the scheme of the 1986 will, except as expressly indicated by the instructions given in the 22 August 1988 letter and subsequent communications. 30 In relation to the 1994 will, there is clear evidence not only that Ms Buntine understood clause 2 of the 1989 will to operate in favour of Mr Long in relation to the totality of Mrs Long's estate but also that, in carrying clause 2 of the 1989 will over into the 1994 will, she understood that she was causing the 1994 will to have an effect, in that respect, corresponding with her understanding of the 1989 will; also that this is what her instructions required. This is made clear by her handwritten summary of the 1989 will ("H [husband] to get whole estate unless predeceased") and her statement in the letter of 15 February 1994 that Mr Long "inherits the entire estate should Mrs Long predecease him". It is also confirmed by her in her affidavit. Cross-examination of Mr Long 31 Ms Nash of counsel, who appeared for Ms White, challenged Mr Long in cross-examination on several matters. First, she tested him on the proposition that the instructions conveyed to Ebsworth & Ebsworth by letters written by him alone and conversations he alone had with the solicitors at that firm included instructions from Mrs Long as to her wishes and intentions, as distinct from intentions of Mr Long only as to what should be in his wife's will. Mr Long conceded that all contact with the solicitors in relation to Mrs Long's wills was by him and that Mrs Long had not visited the solicitors' office or spoken to them by telephone. The following passages of cross-examination are relevant: "Q. At no time did you ever show your wife the letters, did you, that you wrote to the solicitors? A. Of course I did. Q. You never got her to sign them, did you? A. No, but she saw all the correspondence backwards and forwards between the solicitors and myself. Q. Are you saying that you asked your wife about what she wanted to do with her estate? A. We discussed it in detail. Q. Did you ask her what she wanted to do with her estate? A. Yes. Q. Mr Long-- A. It was a mutual discussion. … Q. Would it be fair to say that you instructed the will to be prepared for your wife in accordance with what you wanted? A. What we both wanted. We discussed it. She knew what was in the will, and she knew that she was being looked after and protected. Q. So-- A. She accepted what was in the will and she understood it. My wife was no fool. Q. Mr Long, the question was: You never took her to a solicitor so that she could put her instructions, did you? A. No. Q. You wanted to protect your wife, you said, didn't you? A. And care for her, yes. Q. And the instructions you gave for the preparation of her will reflected your desire to protect her, didn't they? A. After discussion with her, and she knew exactly what was in the will. Q. Mr Long-- A. It was not by direction to her as to what was in the will. It was after mutual discussion. Q. Mr Long, if you would just answer this question: The will, as drafted, reflects your intention to protect your wife, doesn't it, and by that I mean the 1994 will of your wife? A. And her acceptance of those proposals." 32 Mr Long's attention was drawn to the different approach taken in his wills compared with those of his wife: whereas, under each of her wills (subject to the question now in issue), her whole estate passed to him if he survived her, the approach under his wills was that she was given a life interest only in his estate, with remainder to either the children or the grandchildren. Mr Long was cross-examined about his views as to his wife's abilities. After questions and answers concerning her employment history, the cross-examination continued: "Q. So, Mr Long, really, the reason, would it be fair to say, that your wills differ between you and your wife is that you had some concerns about her ability? A. I would say it would be more correct to say that I was over-protective. Q. And you were over-protective when you gave instructions about her will, weren't you? A. I don't give her instructions about her will. I discussed her will with her, and we agreed that that's what the terms would be. Q. You were over-protective? A. There were no instructions to my wife as to the details of her will. Q. You were over-protective about your wife when you gave instructions to your solicitors about the preparation of her will, weren't you? A. That's a different way of expressing it. Yes, I instructed our solicitors how we wanted our wills made out. Q. I am putting it to you that you instructed your solicitors in how you wanted your wife's will to be drafted? A. That's not correct." 33 Mr Long was also asked questions about the letter dated 15 February 1994 written by Ms Buntine and addressed to Mr and Mrs Long: "NASH: Q. Do you recall receiving a letter from your solicitors on 15 February 1994, which is at page 53 of the agreed bundle? Would you like to see a copy of that letter? A. Yes. (Shown). Yes. Q. Did you show the letter to Mrs Long? A. Mrs Long saw all the correspondence that came backwards and forwards between me and the solicitor. Always. Q. So, you say that she understood then, at that time, that under your proposed 1994 will she was to get a life estate? A. Yes. Yes. Mrs Long knew that she was being protected. She understood what was in the will, and she knew that there was some protection there, and she understood it." Assessment of matters arising from cross-examination 34 Ms Nash sought to draw from Mr Long's evidence the foundation of a finding that Mrs Long, in effect, signed whatever Mr Long asked her to sign and that she never had any independent intention of her own as to the content of her will; also that Mr Long gave instructions to the solicitors regarding Mrs Long's will not necessarily with her authority. I do not consider any such finding to be warranted. I accept that Mr Long had all the contact with the solicitors as to the preparation of the 1989 and 1994 wills. But I am satisfied, by Mr Long's evidence and the surrounding circumstances, that Mrs Long acquiesced in that and that the instructions Mr Long gave to the solicitors represented not only his intentions but also those of Mrs Long. 35 Mr and Mrs Long were married in 1942. By 1994, they had been husband and wife for more than 50 years. As Mr Long said in cross-examination, "My wife and I had a mutual loving relationship for 50 years, and we totally respected each other". He also said, as quoted above, "My wife was no fool". Mrs Long had worked from leaving school to age 65. She held clerical positions from middle age to her retirement. For a couple of years when younger, she had, with a friend, operated a small lending library and an adjoining cake shop. Mr Long had worked in commercial positions for the whole of his career and, at the time of his retirement, held a senior managerial post. 36 Ordinary experience would suggest that many women of that generation might be inclined to defer to their husbands in matters such as contact with solicitors. But it by no means follows that such women lack independence of thought or do not say what they think – merely that the exercise of such independence is likely to occur within the confines of the home and the marriage, without necessarily being obvious to outsiders. There is no reason to question Mr Long's evidence that he and his wife discussed together how their various wills should be framed, particularly as changes in the circumstances of their children occurred. Nor is there reason to question Mr Long's evidence that the instructions he gave to the solicitors represented the wishes of both of them, with Mrs Long's no less prominent than those of Mr Long so far as disposition of Mrs Long's estate was concerned. I accept his evidence that Mrs Long saw all letters to and from the solicitors and the various draft wills. I also accept that, with Mr and Mrs Long living in retirement at Hawks Nest, several hours' drive from Ebsworth & Ebsworth's office in Sydney, the fact that instructions were by letter and telephone, rather than face to face, is unexceptionable. 37 I am satisfied that Mrs Long saw Ms Buntine's letter of 15 February 1994 to Mr and Mrs Long enclosing drafts corresponding with the wills as eventually executed. That letter formed a sound basis for an opinion of or belief by a recipient and reader of the letter that, under the form of will prepared for Mrs Long, the "entire estate" would pass to Mr Long if Mrs Long died first. The matter was stated there in simple and straightforward terms. The message conveyed by the letter would, in all probability, not have been questioned by a layperson reading the form of will. Lawyers are, of course, attuned to the difference between "personal estate" and "real estate". Non-lawyers are not. A layperson reading clause 2 of what became Mrs Long's will may well not have appreciated that it did not (or may not) pass what the letter referred to as the "entire estate". The form of words was expansive: "… all my personal estate of whatsoever nature and kind and wheresoever situated to which I shall be entitled or over or in relation to which I shall have any power of disposition at the time of my death". A reader not versed in the finer points of legal phraseology might well regard the words following "personal estate" as designed to ensure that the provision was fully comprehensive in its operation and did not leave anything out; while the word "personal" in the expression "my personal estate" could easily have been seen as a synonym for "own" – so that the reference was to "my own estate". The first meaning of "personal" in the New Shorter Oxford English Dictionary (1993) is, after all: "Of, pertaining to, concerning or affecting a person as an individual (rather than as a member of a group or of the public, or in a professional capacity etc.); individual; private; one's own." 38 Mr Long said that he read the clause in question and thought it dealt with the whole estate. There is no reason to think that Mrs Long could or would have formed a different view. 39 In short, a reading of clause 2 by Mrs Long would most likely not have aroused any suspicion that the will as drafted differed in meaning, in this aspect, from the brief description given in the letter of 15 February 1994; nor is there any evidence that any such suspicion actually arose. Findings 40 It is established on the balance of probabilities, first, that when Mrs Long executed her will on 8 March 1994, she had seen the letter of 15 February 1994 in which the effect of the will was described as being that Mr Long "inherits the entire estate should Mrs Long predecease him"; second, that such a mode of disposition had been adopted in Mrs Long's wills of 1982 and 1986; third, that the instructions for the preparation of what became Mrs Long's 1989 will, by referring to "alterations in my will and that of my wife" and saying nothing about any change to the gift in favour of Mr Long should he survive, contemplated continuation of the mode of disposition in the 1986 will; fourth, that there was a mistake in the drafting of the 1989 will in that clause 2 referred to "personal estate" instead of "real and personal estate" thus leading to an entirely incongruous situation in which there would have been an intestacy as to real estate if Mr Long had not survived Mrs Long by the requisite period and clause 2 had been construed as not extending to real estate; fifth, that the solicitor who prepared what became Mrs Long's 1994 will honestly believed that the gift to Mr Long under clause 2 thereof encompassed the entirety of Mrs Long's estate; sixth, that that solicitor communicated her belief to Mrs Long by the letter of 15 February 1994; and, seventh, that there was nothing on the face of the form of the 1994 will that would have caused a person without legal training to regard it as being, in the material area, at odds with the description of it in the letter of 15 February 1994. 41 The court is accordingly satisfied, for the purposes of s.29A of the Wills Probate and Administration Act 1898, that the positive intention of Mrs Long was that clause 2 of her will dated 8 March 1994 should refer to "all my real and personal estate", being the "entire estate" mentioned in the 15 February 1994 letter, and not merely to any lesser part of that of that "entire estate" comprehended by the words "my personal estate". A matter possibly relevant to discretion 42 I should add that it is not, to my mind, entirely beyond doubt that, if the court were called upon to construe clause 2 of Mrs Long's 1994 will, it would hold that the clause failed to dispose of real estate. The dispositive words are "give devise and bequeath". As a noun, "devise" refers to "that group or collocation of words reduced into writing which operates as a disposition of the testator's lands": Swinton v Bailey (1878) LR 4 App Cas 70 at p.79 per Lord Penzance. As a verb, "devise" refers to disposition of a testator's realty: Hall v Hall [1891] 3 Ch 389 at p.392 per Fry LJ. This, plus the expansive and comprehensive form of words immediately following "my personal estate" and the common meaning of "personal" to which I have referred at paragraph [37] above, may justify a finding that clause 2 operates upon the entire estate, although significant contrary indications would come from the addition of an express reference to real estate in the otherwise corresponding form of words in clause 7 and the fact that the will was prepared by a lawyer who must be presumed to know the significance of the legal terminology: see In re Cook; Beck v Grant [1948] Ch 212 at p.216 per Harman J. 43 I raise this question not because it requires an answer in the present proceedings but to make the point that the possibility that rectification is not needed does not stand in the way of the making of a rectification order as sought. In that respect, I consider the circumstances of the present case to be the same as those considered by Hodgson J in Application of Spooner; Estate J J Davis (unreported, NSWSC, 28 July 1995): "Having regard to the way the codicil was expressed, it is arguable that, notwithstanding the mistaken deletion of CL4(i), the codicil, on its true construction, does indicate an intention that John Therry-Ward have a life tenancy of the house. This intention might be gleaned from the words "add to this clause" and "also" which appear in the substituted CL4(i), and from the terms of the added CL4(a). It might be argued that, if that is the true construction of the codicil, then it does not fail to carry out the testator's intentions. I have come to the view that that would be too narrow a construction of s29A(1). It seems to me that the codicil does fail to carry out the testator's intentions, even if the codicil, on its true construction, makes the gift of the life tenancy of the house to Mr Therry-Ward. This is because it was the testator's intention to leave in the will the subCL(i), which the codicil was expressed as deleting; and also because the codicil made it a matter of doubt as to what was its effect whereas, clearly, the deceased's intention was to make a will which expressed with appropriate clarity what was to happen to her property. The view that rectification is available in these circumstances has some support in relation to rectification of contracts from the Privy Council decision in Standard Portland Cement Co v Goode (1982) 57 ALJR 151 at 154, where the Privy Council expressed the view that, although the contract in question had the intended effect on its true construction, the appellant was entitled to rectification 'ex abuntanti cantela'. In my view, it is appropriate in this case to give rectification on the same basis." The approach thus taken by Hodgson J was approved by McLelland CJ in Eq in Estate of Cross (unreported, NSWSC, 9 May 1996). Disposition 44 In light of the findings stated at paragraphs [40] and [41] above and in the absence of any consideration weighing against the exercise of the discretion conferred by s.29A of the Wills Probate and Administration Act, Mr Long must be taken to have made out a case for the order he seeks for the rectification of Mrs Long's will. Mr Long is accordingly entitled to Order 1 in the summons (see paragraph [4] above). I shall hear the parties on costs. ********** Last Modified: 11/01/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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