Seccombe v Maluta & Anor [2009] NSWSC 1174

New South Wales Supreme Court

CITATION : Seccombe v Maluta & Anor [2009] NSWSC 1174

HEARING DATE(S) : 2 November 2009

JUDGMENT DATE : 2 November 2009

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 2 November 2009

DECISION : Will rectified as sought.

CATCHWORDS : SUCCESSION – RECTIFICATION OF WILL – whether the Plaintiff proved the testatrix's actual intention and that her solicitor made a drafting error.

CATEGORY : Principal judgment

Robert William Seccombe (Plaintiff) PARTIES : Marlene Elizabeth Maluta (First Defendant) Judith Ann Weir (Second Defendant)

FILE NUMBER(S) : SC 4653/09

COUNSEL : Ms J.K. Taylor (Plaintiff) L.J. Ellison SC (Defendants)

SOLICITORS : Maxwell & Co (Plaintiff) B.L. Crane & Assoc (Defendants)

4653/09 Seccombe v Maluta & Anor

JUDGMENT – Ex tempore

2 November, 2009

1 The Plaintiff is one of the executors of the estate of Mary Elizabeth Seccombe, who died on 29 April 2009. The Plaintiff seeks an order for the rectification of Mrs Seccombe's last will, dated 26 April 2006. 2 The clause sought to be rectified is clause 6 which purports to grant an option to the Plaintiff to purchase a property at Lennox Head. Clause 6 presently reads: " I EMPOWER my trustee ROBERT WILLIAM SECCOMBE notwithstanding his office to purchase from my estate my house known as x x x, Lennox Head and in the event of my said trustee so purchasing then I DECLARE that the price to be paid by my trustee shall be not less than the Valuer General's latest valuation issued prior to that date of my death as the value of the unimproved land and being the valuation used for Land Tax purposes. Robert shall have twelve (12) months to elect to purchase with settlement within forty (40) days of election to purchase." 3 Rectification of this clause is sought by the deletion of the words, "not less than" so that the clause grants an option to the Plaintiff to purchase the Lennox Head property for a price which is exactly the Valuer General's latest valuation of the unimproved value of the land. 4 The Defendants oppose the application. The question is one of fact: what was the actual intention of the testatrix in incorporating a clause in terms of clause 6 in her will. Fortunately, the Court has the benefit of the evidence of the solicitor who drew that will, Mr Goodwin. Mr Goodwin had acted for Mrs Seccombe for a number of years and he was familiar with her family circumstances. 5 In accordance with best practice, Mr Goodwin took a file note of his attendance on Mrs Seccombe, in the course of which he took instructions for the will which she executed on 26 April 2006. The handwritten file note makes it clear that Mrs Seccombe wished the Plaintiff to have the option of purchasing the Lennox Head land for a price equal to the Valuer General's "land value last issued before my death", i.e. the price was to be the value of the unimproved land. 6 The instructions given by Mrs Seccombe on that occasion are amplified in a further file note which Mr Goodwin prepared shortly afterwards. In that file note, which is in evidence, Mr Goodwin sets out his instructions as follows: