New South Wales Supreme Court CITATION : Public Trustee v Herbert [2009] NSWSC 366 HEARING DATE(S) : 14/04/09 JUDGMENT DATE : 8 May 2009 JURISDICTION : Equity Division JUDGMENT OF : Macready AsJ at 1 CATCHWORDS : SUCCESSION - Wills, probate and administration - Construction - Evidence of surrounding circumstances to the making of the will - Evidence of testator's knowledge of family and beneficiaries - Identification of person referred to in will – Held that on a true construction of the second defendant is the person entitled to the gift in clause 4 of the will. - SUCCESSION- Cross claim for rectification of will under s 29A Wills, Probate and Administration Act 1898- Late application- Whether sufficient cause is shown for the failure to make application in time- Held cross claim does not need to be determined PARTIES : Public Trustee of NSW v Herbert (Estate of Wallace John Trembath) FILE NUMBER(S) : SC 1333/06 COUNSEL : Mr M Meek for plaintiff Mr R McPherson for 1st defendant Teece Holdgson Ward for plaintiff SOLICITORS : Parry Carroll for 1st defendant Mr W Allars, Vincen Love & Co for 3rd defendant - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ASSOCIATE JUSTICE MACREADY Friday 8 May 2009 1333/06 PUBLIC TRUSTEE OF NEW SOUTH WALES v STANLEY HERBERT (ESTATE OF WALLACE JOHN TREMBATH) JUDGMENT 1 HIS HONOUR: This is the hearing of the plaintiff's amended summons in which it seeks a determination as to the true construction of the will of the of the late Wallace John Trembath dated 21 January 1988. The question concerns the entitlement to the gift in clause 4 of the will. It is either the first, second or third defendant or, alternatively, there may be an intestacy in respect of the provision. The summons also seeks an order that the plaintiff is justified in distributing the estate of the deceased to the second defendant. 2 There is also a cross summons brought by the first defendant, Mr Stanley Herbert, seeking an order pursuant to section 29A of the Wills Probate and Administration Act 1898 rectifying the will of the deceased in order to change the name "Hubbard" to "Herbert". Background 3 In order to understand the application it is necessary to notice a number of matters concerning the history of the deceased. 4 The deceased, John Trembath, was born on 23 November 1927 and died on 13 January 2000 aged 72. He was the 10th of 12 children of William James Trembath and Norah Agnes Hall. He did not marry and had no children. To understand the evidence it should be noted that the deceased was known as "Jack" or "Uncle Jack". 5 In December 1938 the first defendant, Edward Stanley Herbert (known as "Stanley"), was born and he is now aged 70. In 1960 he married Dawn Patricia Bamford a child of Dorothy Olga Lowe one of the deceased's siblings. Dorothy was the 9th of the 12 children. Dawn Bamford and Stanley Herbert met in 1958 and they were engaged in May of that year. At that stage Stanley was in the army completing his national service. After their marriage in 1960 they moved to Cronulla and in July 1960 the second defendant, Stephen Brett Herbert, was born. He is now aged 48. At some time in the early 1960's the family moved to live in Seven Hills. In 1973 or 1976 Stanley and Dawn separated and Stanley left to go to South Australia. 6 On 17 November 1977 Dawn and Stanley were divorced. 7 On 20 January 1988 the deceased executed a will at the Burwood branch of the Public Trustee and at the time he gave instructions for his will the officer recorded his instructions which are in evidence before me. The deceased returned the following day when he made an alteration to his will which was to insert a clause dealing with his personal papers and a clause about his burial. His last will was then executed on 21 January 1988. 8 The relevant clauses of the deceased's will are as follows: "4. I give devise and bequeath the whole of my estate both real and personal to my trustee upon trust to pay thereout all my just debts funeral and testamentary expenses probate estate death or other duties and thereafter for my grand-nephew Stanley Hubbard absolutely if he be living at my death provided however should my said grand-nephew predecease me for my niece Valerie Hore (nee Brodin) absolutely if she be living at my death. 5. I request that all my personal papers and records not required for the purposes of administering my estate to be destroyed by burning. 6. I direct that my remains be interred in a lawn cemetery and to erect a headstone on my grave giving details of my war record and I request that a Roman Catholic Burial Service be conducted prior to my body being interred." 9 Dawn Bamford's mother, Dorothy Lowe, died on 11 March 1988. At the time the will was made on 21 January 1988 the deceased's niece, Valerie Hore, was still alive. She died on 29 June 2006 and her executor is the third defendant. The difficulty with clause 4 is the correct construction of the expression "grand-nephew Stanley Hubbard". The evidence is clear that the deceased did not have any family members or relatives with the surname "Hubbard". The closest name is the surname of the first and second defendants which is "Herbert". 10 If one uses the expression "grand-nephew" in the familial sense the second defendant, Stephen Brett Herbert, would fit that description being a son of the deceased's niece Dawn Patricia Bamford. 11 The other matter to be noted is of course that the first defendant, Edward Stanley Herbert, matches the name in the sense that he is known as Stanley and if the Court were to rectify the will to change "Hubbard" to "Herbert" then he would fit that description. He would not fit the description of "grand-nephew". 12 The interests of those who would take on intestacy might arise if the Court were to construe the gift over to Valerie Hore as having failed because of uncertainty if the Court could not construe the prior gift as being for either of the first or second defendant. 13 For the purpose of the time limits contained within section 29A of the Wills Probate and Administration Act 1898 it should be noted that the summons was issued on 6 February 2006 and the cross-summons on 15 June 2006. 14 The deceased died on 13 January 2000 aged 72 years and probate of his will was granted to the Public Trustee on 24 October 2000. 15 To understand the background, a partial family tree appears as exhibit B1 to the affidavit of Christine Rajakone dated 5 April. 16 There was debate in the hearing before me as to whether certain evidence was admissible as it was said to refer to the intention of the deceased. The other matter which arose was the question of credit of the first defendant, Stanley Herbert. This is important because in his evidence Stanley Herbert, sought to set up a "habit" by which the deceased referred to him as his grand-nephew. This evidence is in those parts of paragraph 14 of his affidavit which were admitted before me. Why the deceased would refer to him as his grand-nephew was not explained in his evidence and Stanley Herbert called no other evidence to corroborate what would be a strange thing for the deceased to do. The deceased had met him when he became engaged to his niece, Dawn. At family gatherings he and the deceased with other men would meet at the local hotel and drink together. 17 Credit issues became important on another aspect of Stanley Herbert's evidence and that was the explanation for the extension of time to bring the application for the cross-claim which sought to rectify the deceased's will. At paragraph 95 of his affidavit Stanley Herbert gave evidence of discussions he had with Mr Peter Smith at the Public Trustee's office. The conversations he recounted included suggestions that Mr Smith said that he was the "number one star "to get all the money under the will and that in answer to a question as to whether he was to contest the will he was told: "You had better get a solicitor but wait 12 months. You can keep ringing me up and we'll let you know what's going on with Mr Trembath's will." 18 Those conversations were denied by Mr Smith and given his position, with his knowledge and experience, it is unlikely that he would have said this to Stanley Herbert. 19 Stanley Herbert and his former wife, Dawn Bamford, gave evidence of the circumstances leading up to their separation and the separation itself. According to Dawn Bamford, her husband, Stanley Herbert, would frequently arrive home in a drunken state and assault her. Stanley Herbert conceded that he would often arrive home drunk and that he and his wife would have arguments but he denied that he assaulted her or that he yelled at her. Stephen Herbert, her son, who was living at home gave evidence that, although he did not see his father assault his mother, he heard frequent arguments and in the morning he would see his mother with a bruised and battered face. 20 There was evidence from Dawn Bamford that from time to time she had to call the police to the home. Stanley Herbert admitted that the police may have been called on one occasion. The most likely reason for the police presence was domestic violence and Stanley Herbert could not suggest any other reason. 21 The other matter where the parties were at issue concerned the circumstances in which the separation occurred. According to Stanley Herbert his wife had occasionally stayed out overnight, she had admitted having a boyfriend and she said she wanted to separate. His evidence is at paragraphs 38 to 43 in his affidavit. He also gave evidence in paragraph 44 that his wife had asked him to see a marriage counsellor which was somewhat surprising in the circumstances that he recounted. According to his evidence in paragraph 45, Stanley Herbert recalled his session with the marriage counsellor and that the counsellor had advised him to get out of the relationship with Dawn as she would ruin his life. This was all denied by Dawn Bamford and she gave evidence that it was her husband, Stanley Herbert, who had a girlfriend and that she was frightened by her husband's violence. 22 During the hearing before me Stanley Herbert and Dawn Bamford were cross-examined about these matters and they both maintained their respective positions. Dawn Bamford was confused at times but she was clear on the basic facts. Stanley Herbert maintained the position he had adopted in his affidavits. 23 It seems to me that Stanley Herbert's story is quite improbable. First, he conceded that he was often affected by alcohol which led to arguments with his wife and on occasion the police had been called to the home. The next point to note is that it would have been extraordinary if it were his wife who was leaving the relationship and having an affair that she would seek to have marriage guidance counselling. The third matter is the advice given by the marriage counsellor as set out in Stanley Herbert's affidavit. 24 As a result of these improbabilities I do not accept Stanley Herbert's evidence unless it is corroborated and prefer the evidence of Dawn Bamford on these matters. 25 In respect of the evidence on habit, given the fact that it is unlikely having regard to the relationship between the deceased and Stanley Herbert and the fact that there was no corroborating evidence on this point, I am not prepared to accept Stanley Herbert on this matter. 26 So far as conflict with Mr Smith is concerned having seen Stanley Herbert in the witness box and noting Mr Smith's careful approach and clear recollection when dealing with Stanley Herbert, I do not accept Stanley Herbert's account of the conversations with Mr Smith. Legal principles on evidence of intention 27 Rules of construction apply where a testator has failed to make his or her intention clear by the will. The primary duty of the court in the construction of a will is to ascertain the meaning of the words used by the testator to identify the testator's intention at the time of making the will: Hatzantonis and Anor v Lawrence; Cox v Lawrence [2003] NSWSC 914 at [6] - [10]; Perrin v Morgan [1943] 1 All ER 187 at 190, 197. There is a presumption against intestacy so that if a will is capable of two constructions, one of which leads to an intestacy, then the court ought to construe the will so as to avoid intestacy: Fell v Fell (1922) 31 CLR 268. 28 The will must be construed as a whole and the court cannot speculate or guess what the testator intended, "the intention must be collected from a just reasoning upon the terms of the instrument and those surrounding circumstances that can be called in evidence": G L Certoma, The Law of Succession in New South Wales, 3rd ed (1997) at 135. Only in limited circumstances will extrinsic evidence be admitted. 29 Generally the court must give words used in the will their meaning as used in the ordinary sense, this is called the usual meaning rule. The usual meaning rule can be displaced by way of the dictionary principle or the armchair principle. The dictionary principle applies where the meaning other than the ordinary meaning of a word or phrase is given expressly or impliedly in the will (that is, from looking at other passages of the will): Hill v Crook (1873) LR 6 HL 265. Alternatively the court may find a word or phrase was used in a secondary sense through the application of the armchair principle. 30 The armchair principle is a rule of construction by which the court considers the circumstances as if it were sitting in the testator's armchair: Boyes v Cook (1880) 14 Ch D 53 at 56. Using this principle the court may admit evidence of the surrounding circumstances to the making of the will including the testators knowledge of their family tree, the testators knowledge of the status of family members or beneficiaries and the testators habit of referring to a person by a nickname: see G L Certoma, The Law of Succession in New South Wales at 143; see also Doe d Hiscock v Hiscock (1839) 151 ER 154 at 156; Charter v Charter (1874) LR 7 HL 364 at 377. 31 In the case of Charter v Charter the testator gave a gift to "my son Forster Charter" and at the date of the will the testator had no son of that precise name, but had two sons named respectively William Forster Charter and Charles Charter. Evidence that the testator habitually called Charles by the name Forster, was admitted to explain the description Forster Charter and the will was accordingly held to apply to Charles. 32 Evidence of surrounding circumstances does not include direct evidence of what the testator intended. As a general rule evidence of the actual intentions of the testator is not admissible: Doe d Hiscock v Hiscock at 157 - 158. 33 An exception is cases where there is an equivocal description: Gord v Needs (1836) 2 M & W 129 at 140–1; 150 ER 698at 703; Doe d Hiscock v Hiscock at 156; Charter v Charter at 377; most recently Amour v National Trust of Australia (NSW) [2009] NSWSC 23 at [7]. 34 An equivocal description occurs when the court after having applied the armchair principle finds that the description is equally applicable to two or more persons or things. The Court in Charter v Charter (at 370, 377 and 383) held that evidence of the declarations of a testator as to whom he intended to benefit, or supposed he had benefited were not allowed as such declarations can only be admitted where the description of the legatee is equally applicable, in all its parts to two persons. 35 In Doe d Hiscock v Hiscock Lord Abinger stated at 157 - 158; "Where the description is partly true as to both claimants, and no case of equivocation arises, what is to be done is to determine whether the description means the lessor of the plaintiff or the defendant. The description in fact applies partially to each, and it is not easy to see how the difficulty can be solved… If, therefore, by looking at the surrounding facts to be found by the jury, the Court can clearly see, with all the knowledge which arises from those facts alone, that the testator meant either the lessor of the plaintiff or the defendant, it may so decide, and direct the jury accordingly; but we think that, for this purpose, they cannot receive declarations of the testator of what he intended to do in making his will." 36 While evidence of surrounding circumstances is admissible, if this evidence is then used by a party to show intention of the testator it is not admissible for this purpose. For example, evidence of the testator being on unfriendly terms with a party is not admissible where it aims to show by implication that the testator did not intend to benefit the party: Sherratt v Mountford (1873) LR 8 Ch App 928 at 930. 37 In re Ofner; Samuel v Ofner [1909] 1 Ch 60 at 64 a testator, amongst other legacies to various nieces and a nephew gave a legacy "to my grandnephew Robert Ofner" of £100 and to another "grandnephew Curt Ofner" of £100. The testator had no grandnephew or other relative of the name of "Robert" Ofner, but he had four grandnephews, Alfred Ofner and Curt Ofner, who was correctly so described in the will, Richard Ofner, a brother of Alfred Ofner, and Botho Ofner. It was proposed to put in evidence a memo­randum in the testator's handwriting that had been given by him to his solicitors as instructions for his will, in which the following words occurred: "to my grandnephew Dr. Alfred Ofner £200 to his brother Robert Ofner £100". It was held that this document was admissible, not as evidence of intention, but to explain what the testator meant by "my grandnephew Robert Ofner ". 38 G L Certoma, The Law of Succession in New South Wales at 145 states that: "Consequently, extrinsic evidence of intention is admissible whenever there is an equivocation irrespective of whether it is discoverable from the surrounding circumstances or only from a consideration of the will as a whole; see, for example, Gord v Needs in which the equivocation was apparent from other dispositions in the will. The only difficulty in determining whether extrinsic evidence of intention is admissible is merely to determine if there is in fact an equivocation, for example, where part of a description applies to one person and another part to a second person there cannot be said to be an equivocation: Doe d Hiscock v Hiscock (1839) 5 M & W 363; 151 ER 154; Charter v Charter (1874) LR 7 HL 364." Application to facts 39 In the present case as part of the description applies to each of the relevant persons there is no equivocation or latent ambiguity and accordingly evidence of the deceased's intention cannot be admitted. In so far as the evidence goes to show the deceased's knowledge of the status of family members or beneficiaries and the testators habits it is admissible. 40 In light of the principles discussed above I would reject the evidence given by Dawn Bamford in her affidavit dated 10 November 2005 in paragraphs 8, 9 and 11. I would allow the contested parts of paragraph 6. 41 In the affidavit of Stanley Herbert dated 8 June 2006 in relation to paragraphs 17 to 23 it is unclear how they are relevant to the surrounding circumstances to the making of the will. To the extent that they might show a close relationship between Stanley and the deceased and thus the probability of the deceased intending to benefit Stanley in his will, I will not have regard to this evidence. For the same reasons I would not have regard to paragraphs 25, 29 and 34 of his affidavit. Similarly paragraphs 10 and 15 will not be relied on to show a special relationship and infer the intention of the deceased to benefit Stanley in his will. 42 The evidence of Dawn Bamford in paragraphs 23 to 34 of her affidavit dated 30 July 2006 is favoured over that of Stanley for the reasons stated above. However it is not relevant to the surrounding circumstances to the making of the will, the deceased's knowledge of his family tree, status of family members or beneficiaries or of the deceased's habits and I will not have regard to it. Paragraphs 37 and 38 I would allow. 43 In relation to the affidavit of Stephen Brett Herbert dated 27 March 2006, I will not have regard to paragraphs 8 and 11. Paragraphs 14 and 15 of this affidavit says that the deceased suggested Stephen join the Army Cadets and was proud of him when he did so. I will not have regard to these paragraphs as they disclose an intention to benefit Stephen in his will. 44 In construing the will, consideration shall be given to the evidence discussed above and a few further matters are worth noting. The evidence received by the Court includes the fact that Stephen fits the description of being a "grand-nephew", no 'dictionary' is created by the deceased in the will; the word niece is used in the ordinary sense and it follows the term "grand-nephew" was too. 45 As I have stated the instruction sheet dated 21 January 1988 for the preparation of the will is before the Court. Under the heading 'Next of kin' is written "Stanley Hubbard grand nephew". The address is listed as "c/- Dawn Hubbard Seven Hills" and date of birth is listed as "over 18". In the present circumstances the instruction sheet can be relied on to show the testators knowledge of the location of family members or beneficiaries but not his intention: re Ofner; Samuel v Ofner. The evidence of Dawn Bamford and Stephen Herbert indicates that by the mid 1980's the deceased was aware that Dawn and Stephen were not living with Stanley. Stanley had no contact with the deceased from the mid 1970's. Stephen had contact with the deceased until the mid 1980's, often through his grandmother Dorothy and later through his mother Dawn. In the instruction sheet the deceased nominated the Seven Hills' address as the location in which his intended beneficiary could be either found or contacted and having regard to the evidence of the deceased's knowledge of the relevant parties at the time the of making the will it follows the address given in the instruction sheet is the address of the second defendant, Stephen Herbert. 46 I am satisfied that on a true construction of the will dated 21 January 1988 of the late Wallace John Trembath, Stephen Brett Herbert is the person entitled to the gift in clause 4 of the will. Rectification 47 In Rawack v Spicer [2002] NSWSC 849, Campbell J (as his Honour then was) set out the principles upon which the power to order rectification under s 29A should be exercised at [21] to [31]. Relevantly his Honour states: "24 An application for rectification under section 29A can be brought even after probate has been granted: The Estate of Cecil Douglas Brisbane (Powell J 19 June 1992 unreported); Huszar (Re Estate of) [1999] NSWSC 388 (Young J, unreported). 25 It is possible for rectification of an unclear clause in a will to be granted ex abundanti cautela , where rectification makes clear the testator's intention, even if the clause which the testator actually executed, on its proper construction, means the same as the clause as rectified: Application of Spooner: Estate JJ Davis (Hodgson J, 28 July 1995, unreported); Estate of Cross (McLelland CJ in Eq, 9 May 1996, unreported). 26 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]). 48 The application for rectification of the will was out of time. The deceased died on 13 January 2000 and probate was granted to the Public Trustee on 24 October 2000. The summons was issued on 6 February 2006 and the cross-summons on 15 June 2006. The time to bring the application expired on 13 July 2001. 49 The discretion to grant leave to make an application for an order under s 29A of the Wills, Probate and Administration Act was recently discussed by Young CJ in Eq in Re Swain (Dawn) [2008] NSWSC 1343 at [14] to [15]: "14 Mr McGovern refers to cases decided under s 16(3) of the Family Provision Act 1982, which prescribes an 18 month period for making applications unless sufficient cause is shown for the application not having been made within time. Mr McGovern in particular refers to the decision of Hodgson J, as his Honour then was, in Warren v McKnight (1996) 40 NSWLR 390 at 394, that there are four principal factors relevant to the exercise of the court's discretion to extend time, viz: (a) the sufficiency of the explanation of delay in making the claim; (b) any prejudice to beneficiaries if the period were extended; (c) whether there has been any unconscionable conduct by the plaintiff; and (d) the strength of the plaintiff's case. 15 In Green v Green [1998] NSWSC 272, I said that: "The words 'sufficient cause' are common in connection with statutes setting a time and allowing the court to extend it. It is not possible just to take over the learning from one statute to another because each has set a time limit for the particular purpose of the statute and the interests involved." I adhere to those words. Furthermore, in that case I quoted words of the High Court in Sophron v Nominal Defendant (1957) 96 CLR 469 at 474-5: "[E]very case must be determined on its own facts. Fixed formulae cannot be substituted for the wide words of the subsection … [I]t is a mistake to attempt to reduce the expression 'sufficient cause' to a closer or more rigid definition than the legislature has chosen to provide. The words no doubt are concerned with the justice of the case. There must be some positive reason for concluding that as between the parties it would be just to extend the period for giving notice." 50 Justice Young went on to note, it not having been considered elsewhere, the relevance of a grant of probate at [19]: "19 It does seem to me that the grant of probate is a very relevant factor to take into account. A grant of probate is an order in rem. The court certifies to all the world that it is satisfied that the will produced to it is the last will of the testator. Once the grant issues, it is produced to all manner of companies and government authorities as evidence as to how they should transmit the property that was formerly the testator's. To recall the grant after a substantial period because the will needs to be rectified is a rather serious step to take and the fact that probate has been granted, a fortiori where probate has been granted on the application of the present applicant for rectification, there is a serious factor against there being sufficient cause." 51 In the instant case there is no prejudice to any beneficiary nor is there any unconscionable conduct on the part of the first defendant. The first defendant did not give evidence that he had no knowledge of the relevant time limits and there is no suggestion that he consulted solicitors before those who now act for him. The first defendant was not cross examined on the subject. The application for rectification was made well outside the 18-month period allowed by the legislation and was made approximately 6 years and 5 months after the date of death and approximately 5 years and 8 months after probate was granted. Given that I do not accept the first defendant's evidence as an explanation for the delay, and the seriousness of recalling the grant of probate after such a substantial period, I would not have been prepared to extend time. 52 In any event given the finding in relation to construction, the cross-claim for rectification does not need to be determined. 53 I direct the parties to bring in short minutes and deal with costs. ********** 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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