New South Wales Supreme Court CITATION : Glen v Bilton Re Estate of Hextall [2005] NSWSC 1365 HEARING DATE(S) : 14 March 2005 JUDGMENT DATE : 14 March 2005 Equity Division JURISDICTION : Probate List JUDGMENT OF : Windeyer J at 1 DECISION : Rectification of will refused CATCHWORDS : WILLS PROBATE AND ADMINISTRATION - construction of will - rectification Deborah Dawn Glen (Plaintiff/Cross-Defendant) Donald Bilton (First Defendant/Cross Claimant) Megan Tyler (Second Defendant) PARTIES : Luke Gorman (Third Defendant) Benjamin Gorman (Fourth Defendant) FILE NUMBER(S) : SC 122270/04 Mr G George (Plaintiff/Cross-Defendant) COUNSEL : Mr D M Flaherty (First Defendant/Cross claimant) Mr L Ellison (Second, Third and Fourth Defendants) DTA Lawyers (Plaintiff/Cross-Defendant) SOLICITORS : Cameron Gillingham & Boyd (First Defendant/Cross-claimant) Heckenberg Associates (Second, Third and Fourth Defendants) LOWER COURT JURISDICTION : - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST WINDEYER J MONDAY 14 MARCH 2005 122270/04 - DEBORAH GLEN v DONALD BILTON & ORS JUDGMENT 1 HIS HONOUR: In this matter, as I have come to a firm conclusion, it seems better to give the decision now even if it is not in perfect form. To save any suspense I have come to the conclusion that the claim for rectification must fail. 2 The testatrix, Mrs Hextall, died on 21 August 2003. She left a will dated 5 June 2000. She had given some instructions for that will to a solicitor, Mr Walsh, on either 10 or 20 April 2000. Mr Walsh made some notes of his instructions on that day. He had been handed by Mrs Hextall a document, apparently in her handwriting, which set out details of members of her family and details of her intended dispositions for a will. 3 There are some notes on that document, one of which is the following, "Cash as of 1.8.2000". As that date is both after the date the instructions were given and after the date of the will, it is not possible to say how it came to be put on the document in question, particularly as it does not appear to be in the handwriting of the deceased, and it is not in the handwriting of Mr Walsh. On any basis, it was not part of the written instructions which were given to Mr Walsh. His affidavit might indicate to the contrary, although I am certain it was not intended to do so. 4 Under the will the deceased appointed her niece Deborah Glen, and her nephew Donald Bilton, as executors. She gave her home in Leichhardt to her niece Deborah Glen, but if she pre-deceased her then to Christopher Boulding, the son of Deborah Glen. 5 Paragraph 4 of the will is as follows: I GIVE DEVISE AND BEQUEATH the remainder and residue of my estate to my Niece CHERYL GORMAN my Brother RONALD JOHN RICHARDS and my Nephew DONALD BILTON and if more than one in equal shares PROVIDED THAT if CHERYL GORMAN pre-deceases me then the share she would have taken had she survived me is to go to her children MEGAN TYLER, LUKE GORMAN and BENJAMIN GORMAN and if more than one then in equal shares. 6 These are the provisions which disposed of the whole of the estate of the testatrix, the balance being normal administrative type clauses. 7 Mr Walsh, having taken the instructions, at some stage between 10 or 20 April and 5 June wrote out some instructions so that a will could be prepared in the office in accordance with what I understand to be precedent clauses, and a format which fitted into the computer system of the firm. That document related to both the instructions which had been given on the first date for a Power of Attorney and the instructions which had been given for a will. 8 That document provided for the executors named in the will to be the executors, although as originally written out it had an additional named executor, namely Mr Boulding. It provided for the Leichhardt property to go to Deborah Glen. It then provided for five legacies each of $10,000 to named relatives, generally speaking to great nephews or great nieces, but one lot of $10,000 to go to the grandson of the deceased, Christopher Boulding. 9 It provided that the residue of the estate was to go to the three persons who were named as residuary beneficiaries under clause 4, which I have set out, and included the words, "And if more than one in equal shares", and then provided for appropriate administrative clauses. 10 The document which was given to Mr Walsh by the deceased, apparently at the first interview, provided for the Leichhardt house to go to Deborah Glen, for a legacy of $10,000 to Christopher Boulding, "Until 18 (education)", and provided that Donald Bilton and Cheryl Gorman were to share equally in investments, "2003 - 50 plus 50 = + or – 100,000". 11 Underneath that were the words in brackets, "(failing Cheryl Gorman - her 3 children)". It then provided Donald Bilton, Cheryl Gorman, and Ronald Richards to divide equally the remaining cash. It then provided at the bottom, "Failing Cheryl Gorman her share to or failing Donald Bilton/Ronald Richards - balance to Cheryl Gorman's 3 children". Those three children are the second, third and fourth defendants, namely Megan Tyler, Luke Gorman and Benjamin Gorman. 12 The document prepared by Mr Walsh on the date of taking instructions referred to the two amounts of obviously $50,000 each, and where they were. It referred to a cash balance, which would appear to be money owed as part of the residuary estate, and it included the following, "Cheryl failed" (then an arrow) "to her children … equal shares: Megan Tyler, Ben Gorman, Luke Gorman". Underneath that is provided, "Brother or Donald Bilton" (then an arrow) "to those 3 ch above". 13 Mr Walsh has no very clear memory of this matter, which is of course understandable, particularly as he is no longer working in the law. There is a note made by him and placed in the file as to his attendance on Mrs Hextall on 5 June 2000, which shows that the interview was 2.10pm to 4pm. It says, "Signed will, signed POA after discussion/explanation are effected. N Walsh." 14 He stated in oral evidence before me that this was a period of time more than was usual for the signing of a Power of Attorney and the execution of a will, taking into account the time necessary to explain them. 15 The document propounded for probate is clearly different from that which the staff in the office would have produced as a result of the written instructions given to them, and different from the original instructions given by Mrs Hextall to Mr Walsh. The plaintiff seeks an order that the will be rectified so that paragraph 4 of it, after the words, "Donald Bilton" reads as follows: "in equal shares on the condition that if any such beneficiary should pre-decease me the share that he or she would have taken had he or she survived me shall go to such of Megan Tyler, Luke Gorman and Benjamin Gorman as survive me, and if more than one in equal shares". 16 By cross claim Mr Donald Bilton, the first defendant, seeks a similar order for rectification subject to a further clause which would provide for a legacy of $10,000 to Christopher Boulding to be awarded upon trust until he attains eighteen years, and then following: "I give devise and bequeath the sum of $100,000 to be shared equally between my nephew Donald Bilton and my niece Cheryl Gorman." 17 Mr Walsh stated in oral evidence, which I accept, that he gave the will to Mrs Hextall and that he read it out to her verbatim, and that she then signed it and it was duly witnessed. It is obvious, I think, that either as a result of some telephone communications between Mr Walsh and the deceased, which he does not remember, or some instructions given to him on 5 June 2000, the draft which he had arranged to be prepared was altered so as to bring about the document which was finally signed by Mrs Hextall. 18 The question then for the court to decide is whether or not this document does set out the testamentary intentions of the deceased, or perhaps whether it fails to set them out, and if it does so fail, what were these intentions which the deceased intended to have included in her last will. 19 It is of course always difficult in cases where the only party to the document is not available, for obvious reasons, to give evidence, to determine what were the true intentions of that person, but very often in applications such as this it is possible to discern quite clearly those intentions from what is an obvious mistake or words which are quite clearly contrary to written instructions from the deceased. In my view that is not the position here. 20 What the plaintiffs are seeking, as counsel for the cross claimant put it, is a somewhat selective rectification so as to bring about a different result. This is brought about by clause four of the will, based upon the notes of instructions either written by the deceased or taken by her lawyer, but only so far as it affects the residue, and not so far as those instructions which quite clearly would have disposed of the sum of $100,000 from the bank deposits, and $10,000 by way of legacy, which are not to be brought forward into the document as rectified. 21 There may be many explanations for all of this. The solicitor is of the view, as stated in his first affidavit, that there is an error in the drafting of the will so far as clause 4 is concerned, so that the intention was that if any of the three residual beneficiaries died before the deceased their shares would go to the children of Cheryl Gorman. That statement is made, he says, having regard to the instructions which he took and the instructions given by the deceased. 22 That statement is not, I should say, borne out by the instructions which he wrote out for the office staff. There is no real explanation for the difference. There is no logical reason in my view for the court to come to a decision that the deceased intended her residuary estate to go in one way, as is indicated from those documents, but that she did not intend the significant specified bequests to remain in her will. 23 All that the court can decide, in my view, is that the instructions were altered on 5 June, that a document was prepared in accordance with those instructions which at least on one reading of it does not involve any partial intestacy, and which the deceased intended to operate on those terms. 24 If for instance the will is properly understood by construing clause 4 at the commencement as being: I give devise and bequeath the remainder and residue of my estate to such of my niece Cheryl Gorman, my brother Ronald John Richards, and my nephew Donald Bilton, as survive me and if more than one in equal shares. then there is no problem. That is at least a possible construction of the document, and if there were to be some claim for rectification, if that were necessary, I do not think it possible to say that is not what the deceased intended. 25 If this document was, as I consider, prepared on 5 June, having been amended on that date and having been shown to and read to the testatrix, who signed it, then it does not seem to me to be possible to bring forward into it some instructions previously given, disclosed in other documents, when other provisions that would have been made pursuant to those documents are not brought forward into the document which was signed by the deceased. 26 I am not satisfied that the deceased intended her will to read in the way propounded by the plaintiffs, nor in the way propounded by the cross claimant. In those circumstances I do not consider any claim for rectification has been made out, and it follows that the summons and the cross claim should be dismissed. 27 The costs of all parties are to be paid out of the estate of the deceased. ********** 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.