Supreme Court New South Wales Medium Neutral Citation: Coates v Wattson; Estate of Sullivan [2013] NSWSC 604 Hearing dates: Friday, 17 May 2013 Decision date: 17 May 2013 Jurisdiction: Equity Division - Probate List Before: Windeyer AJ Decision: Refer to paras [26] and [27] of judgment. Catchwords: SUCCESSION - wills, probate and administration - rectification of will under s 27 of Succession Act 2006 PROCEDURE - costs - appropriate costs order in contested rectification suit Legislation Cited: Succession Act 2006 Category: Principal judgment Parties: Brian Jack Coates (Plaintiff) Jeffory Ray Wattson (Defendant) Representation: Counsel: M Meek SC with R Kako (Plaintiff) P W Bates (Defendant) Solicitors: Dunn Legal (Plaintiff) City Lawyers & Consultants (Defendant) File Number(s): 2012/238396 Judgment 1HIS HONOUR: This is a summons for probate of a will of Doreen Dorothy Sullivan with a claim for it to be rectified in two respects. 2Mrs Sullivan died on 1 December 2011. Her last will is dated 6 August 2011. Under that will the deceased appointed her brother, Mr Brian Jack Coates, as executor, gave certain pecuniary and specific gifts to various friends and relatives, and after those specific gifts gave "3(h) the then balance of my estate to Brian Jack Coates and Janette Coates absolutely". That provision appears in cl 3 of the will after the specific gifts to which I have referred which are included in cll 3(a) to 3(g) inclusive of the will. 3There then follow two provisions which are the main subject of these proceedings. They are as follows, with the clauses numbered as I will set out: "4. My executor may apply to the court for commission for his pains and trouble. 5. My executor holds my estate on trust: (a)(i) Subject to para (ii) to divide it equally between those of my children who survive me. (ii) If a child of mine has already died or dies before me or attaining a vested interest leaving children who attain their majority, then those children on attaining their respective majorities take equally the share which their parent would otherwise have taken." 4The last provision is of course inconsistent with cl 3(h). It is those two clauses in respect of which the plaintiff seeks to have the will rectified by deletion of those two clauses. 5In addition, there is another matter where rectification is sought, namely a gift in para 3(f) which reads: "To my friend my framed tapestry picture." It is agreed that the evidence is clear and that the friend referred to is Anne Catherine Warren and that those names should be inserted after the words "my friend" in para 3(f). It will be rectified accordingly. 6The deceased made, so far as the evidence shows in this case, three wills. Mr Maspero, solicitor, was responsible for the preparation of all of them. 7In the first will the deceased gave a legacy of $40,000 to her daughter who was then known at Deslie Peta Sullivan and a legacy of $10,000 to her son, Peter Kenneth Sullivan, who is the respondent or the defendant in the present proceedings, having changed his name. That will did not include the cll 4 and 5 in the last will. 8The next will made by the deceased is dated 27 January 2011. Under that document the legacy to the daughter is increased to $50,000 and the legacy to the son to $25,000. 9Under the last will, namely the one in question in these proceedings, the legacies to each of the children were increased to $50,000 each. In the last will some of the specific gifts were deleted. These were gifts of jewellery, one to Janette Coates, one to Mary Nixon and one to Louise Kiely. So far as the evidence goes it does appear that the deceased may have disposed of those items prior to the will being made, but I do not think that is entirely clear. 10Mr Maspero kept file notes as to his instructions for the three wills. The evidence is that he does receive requests from those in charge of nursing homes to attend patients in those nursing homes for the purpose of making wills for them. Mrs Sullivan was in the Bayview Nursing Home. The notes, so far as the first will is concerned, show that somebody from the nursing home phoned, and said that Mrs Sullivan needed a new will. Mr Maspero went to see her on 7 September to obtain instructions, and on the notes there are then listed the names of those who were to be executor, substituted executor, specific legatees, and who were to take the residue, namely Mr and Mrs Coates. There was a note it seems related to the son, stating I think that he had a difficult life and had been in gaol. The first will was prepared in accordance with those instructions and executed on 9 September. 11The notes then indicate that a further call was made on 24 January 2011 indicating that Mrs Sullivan wanted to change her will. There are then notes as to new amounts for legacies, including increases in the legacies to the two children and the gift to a friend of an electric wheelchair. This will was signed on 27 January 2011. 12According to the notes and to the evidence of the solicitor, Mrs Sullivan phoned again on 6 August 2011, although the notes indicate that it is 2012. It is not suggested that the conversation took place on that date, and none of the other dates had the year beside them. Mr Maspero suggested that the figures "12" might have indicated the time he was to see the deceased, but that is by no means certain. Nevertheless, I am satisfied that the conversation took place on 6 August 2011 and I am also satisfied that the file note was made on that day or perhaps the next day. Under that file note the instructions were that the children were to get $50,000 each, that Mrs Warren was to get the tapestry picture on the wall to which I have already referred, and that Mrs Grisman was to receive a legacy of $50,000. That was not an alteration, as in fact that was the amount which she received under the earlier will. 13Mr Maspero said that he received additional instructions, namely that the three gifts of jewellery to which I have referred were to be deleted. It is of some significance that this was not included in his notes. 14What then happened was that Mr Maspero prepared the new will. His evidence is that he had no instructions to provide that the two children of the deceased were to take her estate in equal shares or to take anything more than the increase of $50,000 given to them under cl 3 of the will. 15He has no really sensible explanation as to how cll 4 and 5 appeared. He said that he was using as a precedent for the will either one of the two earlier wills. It is not clear which. Whatever be the position, cll 4 and 5 in the last will do not appear in either of those documents. Mr Maspero said that he has many precedents and that the cll 4 and 5 were, as I understood it, used for many wills. He says that they were included in error, contrary to the instructions of the testatrix given to him. His evidence is that there were no instructions given to increase the benefits given to the children above those included in cl 3 of the will. 16The question then is whether or not the requirements of s 27 of the Succession Act 2006 are satisfied, namely whether the court is satisfied that the will does not carry out the testator's intentions because either: "(a) a clerical error was made, or (b) the will does not give effect to the testator's instructions." 17On the evidence of Mr Maspero, both of those situations arise. He says that there were no instructions to include that clause and that it was included as a result of a clerical error. If it was a clerical error, then it was his error, as he does not employ a secretary and the will was in fact prepared by him. 18I think it necessary to say this. The evidence is that the will was given to the deceased and she read it and it was then executed in accordance with the law. I have said many times in lectures and other occasions that it is quite inappropriate for a solicitor to attend a lady in a nursing home, to give her a will, tell her to read it, and then ask if that's what she wanted, when normally she will say, "Yes dear." All that is evidence of is that she said, "Yes dear." It is no evidence whatsoever that the deceased knew what was in the will. The will should be read aloud and explained. 19I point it out because if the will had been read aloud to the testatrix, one would hope and perhaps could assume that Mr Maspero would have realised on reading cll 4 and 5 that he had made an error and they should not be there. That is another reason why wills should be read out aloud. 20The third reason why they should be read out aloud is that it would tend to reduce their length. This will, for instance, has provisions in it which have no purpose whatsoever from cl 6 on. It is quite unlikely that someone in a nursing home would understand what they are about, and it is absolutely ridiculous in my view to put in clauses from a computer which have no relevance whatsoever to the particular testatrix involved. 21The only evidence before the court is that the testatrix's instructions were to vary the will in what might be described as two ways; to increase the benefits given to the two children and to delete three other specific bequests. Those were the instructions which were given. Those instructions were not carried out. The solicitor says that he had no instructions to put those clauses in the will and it was a clerical error of his to put them in. There is really no evidence whatsoever to the contrary, and in those circumstances it is clear that the will fails to carry out the intentions of the deceased, and therefore that it should be rectified. 22Grants of probate are normally made in this Court by the Registrar making a grant of probate in common form. That seems to me to be the appropriate procedure, namely for the Registrar to check and ensure that all the documents required for a probate application are in order, while it should be left to a Judge to order rectification if that is the proper course. 23In those circumstances what I would propose to do is to make the order sought in para 2 of the summons for probate and to refer the matter to the Registrar to complete the grant. [Discussion as to costs.] 24The defendant seeks an order that his costs be paid out of the estate. That I think would still be a normal order in a construction suit, but this is not a construction suit. All the written evidence put before the court was that the case fell clearly within s 27 of the Act. The oral evidence really cast little doubt on that because the only problem about it was that the solicitor could not give any sensible explanation as to the source of the two clauses which he inserted into the will. Nevertheless, the evidence was perfectly clear that the deceased gave no instructions to put those clauses in or to change her will other than in the ways to which I have indicated. This is supported by the fact that the clauses were entirely inconsistent with the gifts in para 3, but perhaps that is not an important point. 25Nevertheless, I think the appropriate order is that the costs of the plaintiff on the indemnity basis be paid out of the estate and there be no order as to costs of the defendant. 26I make the order sought in paragraph 2 of the summons, adding to clause 2.2 the words, "4 and" after the word clause, so that clause 2.2 will read, "By the deletion of clauses 4 and 5 of the will." 27Refer the matter to the Registrar to complete the grant. Costs of the plaintiff on the indemnity basis be paid out of the estate. No order as to costs of the defendant. The exhibits should remain with the file. 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: 21 May 2013