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: "Attending Mary Seccombe on 26 April 2006 at 11.30am. Robert was present for most of the time. I read the Will and told Mrs Seccombe that the estate was going equally but that Robert had a right to purchase the Lennox Head property at the Valuer General's price which was a cheap land valuation and did not include the value of the improvements. She again said that that was what she wanted to do. She said that Robert had provided most of the timber from the Larnook farm and he, her husband and another man had built the house. She said one of the girls had two properties at Lennox and the other one had one. Robert had nothing and she still felt that he had stayed back on the farm which held him back and he should get the Lennox property. I asked Robert to leave and then Liz Turnbull was present when I read through the Will again and explained the situation. She again confirmed that Robert had done a lot. Some of the girls thought he got more but he had to sell the Larnook property in order to buy the Leeville property which she got the benefit from and also again reiterated that Robert provided the timber for the house and contributed a lot to its construction and it was therefore fair that he only have to pay for the value of the land and also understood that the valuation could be lower than the market value." 7 Mr Goodwin has been cross examined by Mr Ellison SC, who appears for the Defendants, but there is no basis whatsoever – as Mr Ellison fairly concedes – to question either the accuracy of Mr Goodwin's file note or his general veracity. It is therefore quite clear on the evidence, as Mr Goodwin concedes, that the testatrix wished the Plaintiff to have the option to purchase the Lennox Head property at the Valuer General's unimproved land valuation, and that a mistake was made by Mr Goodwin in drafting clause 6 of the April 2006 will, in that the price at which the option is to be exercisable is not stated as being the Valuer General's latest valuation of the unimproved value, but rather at a price being "not less than" that price. The Defendants have since taken the point that the option price is not stated, so that there is no binding and enforceable option. 8 The drafting mistake was carried forward from previous wills – one in March 1998 and the other on 22 October 2004 – both of which wills granted an option in respect of the land to the Plaintiff at a price "not less than" an amount of a valuation for the whole of the property. 9 I am comfortably satisfied that it was the actual intention of the testatrix at the time she executed her last will that an option should be conferred on the Plaintiff by clause 6 of her will for the purchase by him from the estate of the Lennox Head property at a price being exactly the price of the amount of the Valuer General's last valuation of the unimproved land value. There is nothing in the evidence which has been adduced by either side which casts the slightest doubt, in my view, on that conclusion. 10 Accordingly, I make the order sought in paragraph 1 of the Summons. Costs 11 The Plaintiff seeks a costs order against the Defendants. The Defendants say that the proper costs order is that the solicitor who made the error in drafting the testatrix's will – that is, Mr Goodwin – should bear the costs of proceedings, thereby seeking to cast onto Mr Goodwin the burden that would otherwise fall upon them as unsuccessful parties in the proceedings. 12 In some cases, to which I have been referred by Mr Ellison, the solicitor who made a drafting error in the preparation of the will of the deceased has been ordered to pay the costs of the proceedings which have resulted from that error. I do not think, however, that in this case such an order is appropriate. My reasons are as follows. 13 The error which was made was the inclusion of words carried forward from previous wills, being the words "not less than", which made the option granted by clause 6 of the 2006 will unenforceable. The intention of the amendment embodied in the 2006 will was clear enough, and that is that the property should be purchased by the Plaintiff at a price which excluded the value of improvements on the property. However, the Defendants were unhappy with any price less than the full market value and this led to the present application. 14 The drafting error was frankly admitted by Mr Goodwin in correspondence to the Defendants' solicitors in 2009. In a letter of 8 July 2009 it was pointed out very clearly that the error was that of Mr Goodwin, and Mr Goodwin himself had in June 2009 sent to the Defendants' solicitors copies of the file notes, which he had made prior to drafting the 2006 will, which made it perfectly apparent, if accepted, that it was the testatrix's intention that the Plaintiff have the Lennox Head property at the Valuer General's valuation of unimproved value. Nothing was said either then or has been said now to cast any doubt upon the correctness of Mr Goodwin's assertion that he had made an error in drafting the 2006 will by the insertion of the words "not less than". 15 It seems to me that this litigation has been brought about quite unnecessarily by the refusal of the Defendants, without any demonstrable good reason, to accept a plain, straightforward and self-evident mistake having been made by Mr Goodwin, as he himself had admitted. The application should have been quite unnecessary in view of the admission by Mr Goodwin of his error and the material which he provided in support of that admission. 16 Accordingly, it seems to me that this is a case in which, despite an error having been made by the solicitor, it is the Defendants who bear the responsibility of unnecessary proceedings, and neither the estate nor Mr Goodwin should be burdened with the costs of rectification. Accordingly, the order that I make is simply that the Defendants are to pay the Plaintiff's costs of the proceedings. – oOo – 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.