Supreme Court New South Wales Medium Neutral Citation: Estate of Daly [2012] NSWSC 555 Hearing dates: In chambers Decision date: 25 May 2012 Jurisdiction: Equity Division - Probate List Before: White J Decision: Refer to para [28] of judgment. Catchwords: WILLS, PROBATE AND ADMINISTRATION - mirror wills prepared for and executed by husband and wife - signatures of both duly witnessed - by mistake husband and wife signed will prepared for the other - probate sought of wife's will - whether rectification by omitting signature of husband - whether order should be made for rectification of document signed by deceased - Succession Act 2006, s 27 WILLS, PROBATE AND ADMINISTRATION - document stated testamentary intentions of the deceased but not validly executed - document admitted as an informal testamentary document pursuant to Succession Act 2006, s 8 - no order for rectification Legislation Cited: Succession Act 2006 Wills, Probate and Administration Act 1898 Wills Act 1936 (SA) Cases Cited: In the Estate of Gillespie (Supreme Court of New South Wales, Powell J, 25 October 1991, unreported) Public Trustee v Estate of Smith (Supreme Court of New South Wales, Hodgson J, 5 November 1993, unreported) Estate of Hennekam (deceased) [2009] SASC 188; (2009) 104 SASR 289 In the Estate of Blakely (In the Estate of Williams (1984) 36 SASR 423 In the Goods of Hunt (1875) LR 3 P&D 250 In the Estate of Meyer [1908] P 353 In re Petchell (decd) (1943) 46 W.A.L.R. 62 Category: Principal judgment Parties: Michael James Daly (1st Plaintiff) Jacques Henri Daly (2nd Plaintiff) Representation: Counsel: Solicitors: Dezarnaulds Basten (Plaintiffs) File Number(s): 2011/396953 Judgment 1HIS HONOUR: This application has been referred to me by the Registrar in Probate. It concerns mirror wills executed by a husband and wife where by mistake, each signed the will prepared for the other. The signatures of both were duly witnessed. Evidently no-one appreciated that the husband and wife had signed the wrong will. This is not an uncommon occurrence. (See e.g. In the Estate of Gillespie (Supreme Court of New South Wales, Powell J, 25 October 1991, unreported) and cases there cited; Public Trustee v Estate of Smith (Supreme Court of New South Wales, Hodgson J, 5 November 1993, unreported); and Estate of Hennekam (deceased) [2009] SASC 188; (2009) 104 SASR 289). 2Probate is sought of the wife's will. Her husband predeceased her. The question is whether an order should be made for the rectification of the document signed by the deceased (that is, the will prepared as her husband's will); whether the will prepared in the name of the deceased should be rectified by omitting the signature of her husband and deeming the will to have been signed by the deceased; or whether an order should be made under s 8 of the Succession Act 2006 declaring that the deceased intended that the document prepared for her form her will, and directing that document to be admitted to probate. 3The deceased, Eliane Lucie Daly and her husband, Henri Georges Daly resided in New Caledonia. The wills concerned their property in Australia. On 5 May 2003 they attended at the office of their solicitor who had prepared wills for each of them to sign. The will prepared for the deceased was as follows: "THIS IS THE LAST WILL AND TESTAMENT of me, ELIANE LUCIE DALY of 10 Rue Laguimiville, Noumea, New Caledonia, retired, which said Will shall apply only to such of my assets situate in Australia. 1. I REVOKE all former Wills and Testamentary Dispositions made by me in so far as any such Will or testamentary disposition relates to any of my assets situate in Australia. 2. I APPOINT my sons MICHAEL JAMES DALY, AND JACQUES HENRI DALY to be the executors and trustees of this my Will. 3. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and situate in Australia to my husband HENRI GEORGES DALY. 4. IN THE EVENT of my said husband predeceasing me or failing to survive me for a period of thirty [(]30) days I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and situate in Australia to my sons MICHAEL JAMES DALY and JACQUES HENRI DALY in equal shares as tenants in common. 5. IN THE EVENT of either of my sons MICHAEL JAMES DALY or JACQUES HENRI DALY predeceasing me or [failing] to survive me for a period of [(]30) days, I GIVE DEVISE AND BEQUEATH the share of my estate to which he would otherwise have been entitled to my trustees in trust for that son's children as tenants in common in equal shares and share alike upon their attaining the age of twenty-one (21) years." 4The will of the deceased's husband was in mirror terms. It stated: "THIS IS THE LAST WILL AND TESTAMENT of me, HENRI GEORGES DALY of 10 Rue Laguimiville, Noumea, New Caledonia, retired, which said Will shall apply only to such of my assets situate in Australia. 1. I REVOKE all former Wills and Testamentary Dispositions made by me in so far as any such Will or testamentary disposition relates to any of my assets situate in Australia. 2. I APPOINT my sons MICHAEL JAMES DALY, AND JACQUES HENRI DALY to be the executors and trustees of this my Will. 3. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and situate in Australia to my wife ELIANE LUCIE DALY. 4. IN THE EVENT of my said wife predeceasing me or failing to survive me for a period of thirty [(]30) days I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and situate in Australia to my sons MICHAEL JAMES DALY and JACQUES HENRI DALY in equal shares as tenants in common. 5. IN THE EVENT of either of my sons MICHAEL JAMES DALY or JACQUES HENRI DALY predeceasing me or [failing] to survive me for a period of [(]30) days, I GIVE DEVISE AND BEQUEATH the share of my estate to which he would otherwise have been entitled to my trustees in trust for that son's children as tenants in common in equal shares and share alike upon their attaining the age of twenty-one (21) years." 5Henri Georges Daly died on 27 August 2007. Eliane Lucie Daly died on 22 May 2010. 6The plaintiffs, Michael James Daly and Jacques Henri Daly seek probate of their mother's will. She has died leaving property in New South Wales. 7By their summons, the plaintiffs sought an order under s 27(1) of the Succession Act for rectification of the document signed Eliane Lucie Daly. The orders sought were as follows: "1 An order under Section 27(1) of the Succession Act 2006 (NSW) that the will of the deceased dated 5 May 2003 and commencing with the words 'THIS IS THE LAST WILL AND TESTAMENT of me, HENRI GEORGES DALY' be rectified as follows: (i) That the words 'HENRI GEORGES DALY' on line 1 be replaced with the words 'ELIANE LUCIE DALY'; (ii) That the words 'my wife ELIANE LUCIE DALY' in paragraph 3 be replaced with the words 'my husband HENRI GEORGES DALEY'; and (iii) That the words 'my said wife' be replaced with the words 'my said husband' in line 1 of paragraph 4; and 2. An order that the period of time for making the application for the order sought at paragraph 1 above be extended to 7 December 2011 or such other date as the Court deems fit; and 3. The plaintiffs, Michael James Daly and Jacques Henri Daly, the executors appointed by the will dated 5 May 2003 and commencing with the words 'THIS IS THE LAST WILL AND TESTAMENT of me, HENRI GEORGES DALY' of Eliane Lucie Daly also known as Eliane Lucie Eugenie Greslan of 10 rue Laguimiville, Vallee des Colons, Noumea, New Caledonia, retired, deceased claim that probate of the will be granted to them." 8By their amended summons, the plaintiffs sought the following relief: "The plaintiffs, Michael James Daly and Jacques Henri Daly, the executors appointed by the will dated 5 May 2003 of Eliane Lucie Daly also known as Eliane Lucie Eugenie de Greslan of 10 rue Laguimiville, Vallee des Colons, Noumea, New Caledonia, retired, deceased claim: 1 A declaration that the Court is satisfied that the will fails to carry out the testamentary intentions of the deceased in that the deceased and Henri Georges Daly at the time of executing their respective wills signed the other's will rather than his or her own. 2 An order that the will of the deceased be rectified by omitting the signature of Henri Georges Daly. 3 An order that the will be deemed to have been signed by the deceased. 4 An order that the period of time for making the application for the declaration and orders at paragraphs 1 to 3 above be extended to 1 May 2012 or such other date as the Court deems fit; and 5 That probate of the will as rectified be granted to them." 9Section 8 of the Succession Act relevantly provides: "8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (cf WPA 18A) (1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will-if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will." 10Section 27 of the Succession Act provides: "27 Court may rectify a will (cf WPA 29A) (1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator's intentions because: (a) a clerical error was made, or (b) the will does not give effect to the testator's instructions. (2) A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator. (3) However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if: (a) the Court considers it necessary, and (b) the final distribution of the estate has not been made." 11Both provisions are arguably potential sources of power to deal with the problem. 12In In the Estate of Gillespie, Powell J considered whether the powers then recently conferred on the Court by ss 18A and 29A of the Wills, Probate and Administration Act 1898 should be used to deal with the same problem where mirror wills were prepared for husband and wife and by mistake, each executed the will prepared for the other. 13Section 18A of the Wills, Probate and Administration Act was the predecessor to s 8 of the Succession Act. It was in materially the same terms as s 8. Section 29A of the Wills, Probate and Administration Act was the predecessor to s 27 of the Succession Act and was in materially the same terms. 14After setting out the terms of s 18A Powell J said: "In 1983 (In the Estate of Blakely (1893 32 S.A.S.R. 473), a case such as this came before the Supreme Court of South Australia. In that case, White J., relying upon the provisions of s.12(2) of the South Australian Act ordered ((supra) at 480) 'that the husband's will, the document in the name of the husband, be admitted for probate as if his signature and the signatures of the two witnesses, all appearing on the wife's will, all appeared on the husband's will, and as if the wife's signature were expunged therefrom'. I have some doubt as to whether the provisions of s.12(2) of the South Australian Act, or of s.18A of the Act, which are intended to preserve, as valid, a testamentary act which would otherwise fail for want of formality, permit one to go as far as did White J. in In the Estate of Blakely, a doubt which appears as if it may have been shared by the Law Reform Commission in its Report on 'Wills - Execution and Revocation' (L.R.C. 47 1986), for, in footnote 8 on p.76, the Commissioners, after referring top such cases as Re Meyer (supra), Re Petchell (supra), Guardian, Trust and Executors Company of New Zealand Limited v. Inwood (supra) and Re Brander (supra) observed 'If there were a general power of rectification (see Chapter 7) this type of mistake could also be overcome by resort to it.'" 15After expressing doubt as to the scope of s 18A, but not deciding that question, Powell J said: "... it seems to me that, it being transparently clear that the form of Will, which the Deceased in fact executed did not correctly record his testamentary intentions, this is a case in which it is proper to invoke the powers contained in s.29A of the Act." 16His Honour made the following declarations and orders: "1. DECLARE that, at the time when he executed the form of Will being Exhibit 'B' on this reference, the Deceased did so in the mistaken belief that the provisions contained therein conformed in all respects with the provisions contained in the form of Will being Exhibit 'A' on this reference. 2. DECLARE that I am satisfied that the form of Will so executed by the Deceased failed to carry out the Deceased's testamentary intentions. 3. ORDER that the form of Will so executed by the Deceased be, and be deemed to have been, rectified so as to conform in all respects, except as to the signatures now appearing thereon, with the form of Will being Exhibit 'A' on this reference. 4. REMIT the matter to the Registrar to complete the grant to the Applicant of Probate in common form of the form of Will executed by the Deceased, but rectified as aforesaid." 17The will prepared for execution by the deceased but signed by his wife was Exhibit A. The will prepared for execution by his wife, but signed by the deceased, was Exhibit B. It can be seen from the above orders that the document admitted to probate was the document bearing the deceased's signature rectified to take the form of Exhibit A. 18The relief claimed in the summons before its amendment was in accordance with the declarations and orders made in In the Estate of Gillespie. 19Powell J gave no reason for his doubts as to the scope of s 18A of the Wills, Probate and Administration Act and for dealing with the issue of invalid execution by way of an order for rectification. He did not explain why the document signed by the deceased was his will which could be rectified to conform with his intentions. 20The same problem arose in Public Trustee v Smith where the same form of orders for rectification were made. That is, the document admitted to probate was the document signed by the deceased, but rectified to conform with the form of will which he had intended to sign. Hodgson J followed the decision in In the Estate of Gillespie without further elaboration. 21The question has been more recently considered in the Supreme Court of South Australia by Gray J in In the Estate of Hennekam (deceased). Section 12 of the Wills Act 1936 (SA) is in material respects the same as s 8 of the Succession Act. Section 25AA(1) of the Wills Act is materially the same as s 27(1) of the Succession Act. 22In In the Estate of Hennekam (deceased) Gray J considered, but rejected, the doubt expressed by Powell J in In the Estate of Gillespie as to the width of s 12 of the Wills Act. Prior to the decision in In the Estate of Gillespie the Full Court of the Supreme Court of South Australia had approved the decision in In the Estate of Blakely (In the Estate of Williams (1984) 36 SASR 423). It is settled that there is no implication from the words "has not been executed in accordance with this Part" in s 8 of the Succession Act (s 12 of the Wills Act (SA)) that the informal testamentary document must have been in some way "executed" by the deceased. In In the Estate of Williams King CJ said (at 425): "To execute a document is to do what the law requires to be done to give validity to the document. Section 8 sets out the legal requirements or formalities for execution of a will. If those formalities are not complied with, there is no execution. Execution and signature are, of course, not synonymous. When this is borne in mind, the answer to the present problem becomes clearer. Execution is the validation of a document by going through the formalities required by law for that purpose. The notion of execution of a will other than in accordance with the formalities prescribed by s.8, is therefore a self-contradictory notion. It follows that the saving effect of s.12 is only required and is only operative when the will has not been executed. Signature is simply one of the formalities required by the Act for valid execution. There is no reason, as a matter of construction or logic, to differentiate between signature and any other formalities for execution required by s.8. All that is required for the operation of s.12(2) is that there should be a 'document purporting to embody the testamentary intentions of a deceased person' and that the Court 'is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will'." 23In In the Estate of Hennekam (deceased) Gray J concluded: "[36] Having regard to the materials outlined above, it is appropriate to utilise s 12(2) in the circumstances before this court. The legislative intention demonstrates that these circumstances are precisely the 'mischief' to which the section is directed. Section 12(2) is fundamentally concerned with remedying documents which have not complied with the statutory formalities and risk being held invalid as a consequence. In contrast, s 25AA is a devise [sic] to enable the court to correct a document which does not accurately reflect the testator's intentions. It is generally concerned with rectifying mistakes as to the meaning or the contents of the will. [37] In my view, to delete the portions of the will of the deceased's wife which the deceased actually signed so that the document complies with the known intentions of the deceased, is of greater artificiality than to admit to probate the actual will of the deceased, despite its lack of appropriate execution." 24I agree with this conclusion. 25Section 27 would not confer power to make the orders sought in the amended summons. Before there can be an order for rectification there must first be a will. If no order were made under s 8, the document expressed to be the last will of the deceased, but not signed by her, could not be rectified by omitting the signature of Henri Georges Daly and deeming the document to have been signed by the deceased because the document in question would never have been the valid will of the deceased (Succession Act, s 6). If an order is made under s 8, no rectification is necessary. 26On the authority of In the Estate of Gillespie and Public Trustee v Smith, I could make the orders originally sought in the summons by rectifying the document signed by the deceased, if she intended it to be her will, so the document conformed with her intentions. But I respectfully doubt the basis of those decisions. They proceed on the premise that the piece of paper signed by the deceased was his or her will that could be rectified to conform with his or her intentions. But consistently with the decisions in In the Goods of Hunt (1875) LR 3 P&D 250, In the Estate of Meyer [1908] P 353 and In re Petchell (decd) (1943) 46 W.A.L.R. 62, the deceased never intended the paper she signed to be her will, but intended to put her signature on a different document. To treat her signature as her will and then rectify the contents of the piece of paper she signed is at least artificial, as Gray J said in In the Estate of Hennekam (deceased). It is more than artificial. Section 27 is premised on there being a valid will, which there would not be in the absence of an order under s 8. 27I agree with Gray J in In the Estate of Hennekam (deceased) that the appropriate course is to admit to probate the document the deceased intended to be her will, notwithstanding its lack of due execution, pursuant to s 8 of the Succession Act, and not to make an order under s 27. 28For these reasons I make the following orders: 1. Declare that the deceased Eliane Lucie Daly intended the document commencing "THIS IS THE LAST WILL AND TESTAMENT of me, ELIANE LUCIE DALY" and bearing date 5 May 2003 to form her will. 2. Remit the matter to the Registrar to complete the grant of probate of the said will. 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. Decision last updated: 25 May 2012