Re Will of McCowen [2013] NSWSC 1000

Supreme Court New South Wales

Medium Neutral Citation: Re Will of McCowen [2013] NSWSC 1000 Hearing dates: 15 July 2013 Decision date: 30 July 2013 Jurisdiction: Equity Division - Probate List Before: Young AJ Decision: Rectification of will granted Catchwords: Wills-rectification-alleged clerical error-whether clerical error must be the sole or primary cause of the relevant problem-proper practice when preparing wills Legislation Cited: Succession Act 2006 (NSW) s 27(1) Cases Cited: Wordingham v Royal Exchange Trust Co Ltd [1992] Ch 412 In re Segelman [1996] Ch 171 Marley v Rawlings [2011] 1 WLR 2146 Pengelly v Pengelly [2008] Ch 375 Vescio v Bannister [2010] NSWSC 1274 Category: Principal judgment Parties: Marie Therese McCowen (Plaintiff) Susan McLennan (First Defendant) Jason McLennan (Second Defendant) Rachel O'Reilly (Third Defendant) Coleen Ormsby (Fourth Defendant) Allen McCowen (Fifth Defendant) Dianne Hignet (Sixth Defendant) Representation: Counsel: L Ellison SC (Plaintiffs) Brown (Defendants) Solicitors: Crane Paskins Law (Plaintiff) TD Kelly & Co (Fourth, Fifth and Sixth Defendants) File Number(s): 2012/274375 2013/36930 Publication restriction: Unrestricted

Judgment 1YOUNG AJ: These proceedings are brought to rectify the last will of Kevin McCowen and to obtain a grant of probate of the will as rectified in solemn form. 2I heard the matter on 15 July 2013. I made the appropriate orders on that date, but reserved my reasons as I considered that, while one way or the other, the orders should be made, I was unclear by which of two routes that result followed. 3The testator died on 30 March 2013 aged 77. He had been married three times. He has six children, three by his first wife, three by his second wife, but none with the third wife, the present plaintiff. 4On 7 October 2012, the testator called on Ms Crane solicitor at Alstonville. 5Ms Crane made notes of the instructions for the will. The testator told her that he wished to benefit his third wife, with the residue to be given to his three elder children and the younger three children to receive $1,000 each. He gave a reason for this. 6The solicitor's handwritten note names the three younger children with the figures "$1,000" after each name and then, after a space, names the three elder children in brackets and alongside the words "residue equally". 7It would seem that the notes were passed to an unqualified person, called in the solicitor's affidavit "my paralegal assistant", who drew up and typed the actual will document. However, she did not follow the solicitor's notes and typed the residuary clause to provide not only that the younger children took $1,000 each, but also that the six children shared the residue equally. 8It is not clear what input the solicitor gave to the draft apart from providing her notes to the paralegal. It is clear that the solicitor never checked the draft, though she intended to do so. 9On the following day, 8 October, the testator called again at the solicitor's office. The solicitor was at court. The paralegal had the draft will typed up. Her instructions seem to have been that the solicitor had to check it before it was signed. However, the testator insisted on signing it. The document was handed to him; he appeared to read it and signed it in the presence of the paralegal and another member of the solicitor's staff. 10 The draft is a fairly amateurish effort, with minor internal inconsistencies and other problems, which hopefully will not lead to problems in the future. It has all the features of being drafted by a non-lawyer who has some familiarity with the jargon of will makers. 11The application is made under s 27 (1) of the Succession Act 2006 (NSW), which reads as follows: (1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied that 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. 12The evidence clearly shows that the will was not in accordance with the testator's instructions. That is why I was able to make the appropriate order at the hearing. However, the case was put to me under both limbs of s 27(1) and I was unsure whether the evidence satisfied the first ground; thus I reserved my reasons. 13There are two questions to be addressed under the first limb: (a)Do the facts show that there was a "clerical error"? (b)Must the "clerical error" be the sole or dominant cause of the error? 14The alleged "clerical error" is that the paralegal misread the solicitor's notes as to her instructions when preparing the draft. 15In England, the term "clerical error" in this branch of the law has been widely interpreted. The term not only covers errors in the process of recording the intended words of the testator but also extends to situations where the person drafting the will has not appreciated the significance or effect of the introduction (or deletion) of a particular provision: Wordingham v Royal Exchange Trust Co Ltd [1992] Ch 412, In re Segelman [1996] Ch 171 and Marley v Rawlings [2011] 1 WLR 2146. However, executing the wrong will is not within the term (Marley's case) nor is the failure of the drafter to understand the testator's instructions: In re Segelman, Pengelly v Pengelly [2008] Ch 375 and see Vescio v Bannister [2010] NSWSC 1274. 16In my view the present problem comes within the concept of "clerical error". 17Question (b) posed above is more difficult. It arises as a result of the word "because" in s 27(1). 18In the present case, the error came about (a) through the clerical error, (b) because the solicitor failed to ensure that the testator only executed the will after it was approved by a qualified person and (c) because the will was not explained to the testator, the paralegal merely asked him to read it, which is usually insufficient. 19Indeed, the facts of this case show a most unsatisfactory system in this law office for performing the important task of making wills. 20I have not found any previous decision on the point. However, it seems to me that remedial legislation should be liberally construed and that so long as the clerical error is the principal reason as to why the will does not carry out the testator's intentions, the first limb is satisfied. 21Thus, the order I may on 15 July can be justified under either limb of s 27(1).