Succession Law News, June 2010
Statutory Wills in NSW
The NSW Supreme Court rules on the terms of a will where there is ambiguity or contradictory terms emphasizing the need to ensure that your Will truly reflects your wishes.
Donnolley v Clarke[2008] NSWSC 522 (6 May 2008): Estate of Kenneth John Wisemantel
This was a decision of Justice White concerning the principles involved in the rectification and construction of a will where inconsistent gifts are made, such that different clauses of the will give the same property to different beneficiaries.
The testator had died in 2005. In his most recent will, the testator had appointed Donnolley and others as his executors and had gifted to them the 13 specified parcels of land which comprised the testator’s farm. Donolley and the others were also the residuary beneficiaries. This new will replaced an earlier will in which a different executor, trustee and beneficiary was named. The new will was drafted by the testator’s solicitor.
One of the 13 parcels gifted to the plaintiffs under the new will, portion 196, was the subject of this case. In a subsequent clause of the will, the testator gifted portion 196 to his great nephew, Michael Clarke, the defendant in these proceedings. The same parcel of land had been left to Clarke exclusively in the deceased’s earlier will.
Donolley sought an order for rectification of the will. It was contended that the gift to Clarke ought to be deleted on the basis that the proper construction of the will revealed a scheme for the plaintiffs to inherit the testator’s farm in its entirety. Clarke argued that, where there are inconsistent clauses in a will, the last clause must prevail over any earlier, inconsistent clause. Clarke argued that the gift to him was guided by the later clause in the will and therefore ‘trumped’ the gift to the plaintiffs in the earlier clause.
The plaintiffs sought to rely on s29A(1) of the Wills Probate and Administration Act1898(NSW), which states:
“29A(1) If the Court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, it may order that the will be rectified so as to carry out the testator’s intentions.”
This section will be triggered only where the Court is satisfied that the will in its present form does not carry out the testator’s intentions, and where there is clear and compelling evidence of how the testator intended to dispose of the property in question.
On the basis of the 2002 will, including both Clauses 3(c) and 3(d) and subsequent clauses, his Honour held that it was clear that the deceased “…intended the plaintiffs have at least the bulk of the farm.” However, White J went on to state that the gift of portion 196 to Clarke was not necessarily inconsistent with this intention.
The crux of the plaintiffs’ case was the submission that the testator had simply “…overlooked the fact that he had failed to delete the gift of portion 196 to Mr Clarke.” The plaintiffs sought that the will be rectified to give effect to the deceased’s apparent, overarching intention to leave the entire farm to them.
On the evidence at hand, however, White J refused to accept that the deceased intended to leave the entirety of the farm, including the disputed portion, to the plaintiffs alone.
It was implausible, his Honour said, to conclude that the deceased had intended to delete the gift of portion 196 to Clarke as it stood in the earlier will but had failed notice that this deletion had not been made when he signed the new will.
In the absence of clear and convincing evidence of the testator’s intentions, his Honour declined to make the order that the Will be rectified in the manner suggested by the plaintiffs. The plaintiffs took a 50% share in the property to be held equally as between themselves, while Clarke took the remaining 50%. Costs were ordered to be paid from the estate.