New South Wales Supreme Court CITATION : Perpetual Trustee Co Ltd; Re Estate of Milgrove [2004] NSWSC 648 HEARING DATE(S) : 19 July 2004 JUDGMENT DATE : 19 July 2004 JURISDICTION: Equity Division Probate List JUDGMENT OF : Windeyer J at 1 DECISION : Application to omit words from probate refused CATCHWORDS : WILLS PROBATE AND ADMINISTRATION - deletion of words from grant of probate PARTIES : Perpetual Trustee Company Limited (Plaintiff) FILE NUMBER(S) : SC 108769 of 2004 COUNSEL : Mr Paul Blackburn-Hart (Plaintiff) Ex parte SOLICITORS : Conway Maccallum (Plaintiff) Ex parte - 5 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST WINDEYER J MONDAY 19 JULY 2004 108769/04 PERPETUAL TRUSTEE COMPANY LIMITED v THE ESTATE OF ROWENA VAUGHAN MILGROVE JUDGMENT 1 HIS HONOUR: This is a Summons under which the plaintiff seeks an order that probate of the will dated 6 June 2003 and two codicils thereto, dated 23 June 2003 and 5 January 2004, of Rowena Vaughan Milgrove, deceased, be granted to it, but excluding from the grant the words in paragraph 5(e) of that will. Those words are as follows: 5.00 I confirm that it is my very strong wish that my trustee take, or ensure, the following action is taken immediately it is possible to do so following my death... (e) instruct the liquidators of South Coast Theatres Pty Ltd to offer to sell 197/199 Keira Street to Lend Lease Corporation Limited, at such price and otherwise upon such terms as my trustee in its absolute discretion determines, subject to the terms of any option agreement held by Lend Lease Corporation Limited at the date of my death. At the date of this will, Lend Lease Corporation Limited has an option which it has not yet exercised to purchase 197/199 Keira Street. 2 The deceased died on 11 January 2004. South Coast Theatres Pty Ltd operated the Regent Theatre on the subject property. Under her will the deceased expressed a wish that the theatre be closed and expressed a further wish that a meeting of shareholders of South Coast Theatres Pty Ltd be convened for the purpose of passing a special resolution to place that company into voluntary liquidation and appoint two named persons as joint liquidators. 3 The reason for Perpetual Trustee Company Limited as executor named in the will making this application is that there was an option granted by South Coast Theatres Pty Ltd to GPT Management Limited for the purchase by the latter company of the theatre property. That option included a clause as follows: 14. Confidentiality: Each of the parties agree that the existence of this option deed and its contents are confidential and neither party shall, without the prior consent of the other, disclose the existence of this option, or this deed, or the contents. 4 The deceased, at the date of her death, was one of two directors of the theatre company. The option was still available for taking up at the date of death of the deceased, but that is no longer the position, the term of the option having expired, pursuant to the agreement, on 4 May 2004. 5 There has been correspondence between the solicitor for the executor and Messrs Carroll & O'Dea, solicitors, acting for both Lend Lease Corporation Limited and GPT Management Limited. The essence of that correspondence is that those solicitors claimed that the estate and the executor, … are duty-bound to apply to the Supreme Court for orders to delete the relevant clause from the grant of probate. Lend Lease Corporation Limited and GPT Management Limited both reserve their rights in all respects. 6 The letter states that clause 4(e) is both inaccurate and in breach of the confidentiality clause. Lend Lease Corporation Limited is said to take serious objection to the false and misleading statement that it has an option to purchase the theatre. 7 Messrs Carroll & O'Dea sought to have the whole of clause 5(e) removed from any grant of probate. The plaintiff seeks only to have the last sentence of that clause removed from any grant to be issued. They have informed Messrs Carroll & O'Dea of that, but those solicitors continued to express the view that the whole of the clause should be deleted, apparently, on the basis that it could cause damage to their client. 8 The Probate Court is wary of any application to delete words in a will from the Probate parchment. If testamentary means dispositive, it has never been the law that a non-dispositive clause ought not to be admitted to probate. 9 The cases where words have been deleted from the form of grant issued have been limited to the deletion of words which are scandalous, offensive and/or defamatory. Counsel for the plaintiff, quite properly, states that he has been unable to find any case which would authorise the order sought here but, nevertheless, he says that there are two reasons why deletion should be ordered. 10 The first of these is that failure to do so puts the estate at risk of litigation and therefore, diminution of the available estate for ultimate distribution. The second of these is that, if that happens, there will be delay in distribution, whatever the result of any litigation. 11 While it is possible there may be a risk of litigation, the simple facts are that the clause was not accurate and it does not seem possible that Lend Lease Corporation Limited could have suffered any damage by some statement that it held an option, which it did not hold. 12 If the press clippings are accurate - and I am not suggesting that they necessarily are - then Lend Lease would appear to be disassociating itself from the grantee of the option. 13 Quite what action could be brought by either company against the estate is not clear. The option period has expired. The only evidence before the Court, if it could be stated to be that, is that there are many people in Wollongong who would be pleased the option was not exercised. 14 The deceased was not a party to the agreement. It is not at all clear that the statement by her as to the existence of the option would be an admission binding South Coast Theatres Pty Ltd. If it were, it is impossible to see any damage which could result from that admission which, as a matter of fact, is incorrect on a factual basis, but whether or not there is some risk of litigation that, in itself, would not justify the omission of the words sought to be deleted from the grant. In addition, I do not think that it would be proper to excise the words from the first sentence of subparagraph (e). The two sentences bear on each other. 15 Finally, the risk of delay which might arise from some litigation, the cause of action for which cannot be identified, is no basis for excluding the words from the grant. 16 In those circumstances, the claims under paragraph (a) of the Summons will be dismissed. 17 The claim for rectification under paragraph (b) is not pressed. 18 The claim under paragraph C(ii) of the Summons relates to the possibility of some order being made under section 31 of the Wills Probate and Administration Act 1898. That section does not bear upon this matter. 19 I make the order sought in paragraph (c)(i) of the Summons. 20 Order the balance of Summons be dismissed. 21 Order the file be referred to the Registrar to complete the grant. 22 Plaintiff's costs on an indemnity basis to be paid out of the estate. 23 Exhibits may be returned. ********** Last Modified: 08/03/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.