McPherson v Byrne & Ors [2012] QSC 394

In December 2012 the Queensland Supreme Court was asked to consider who was entitled to receive a portion of the estate where a beneficiary predeceased the deceased and also whether the Court could remove certain words from the deceased’s Will to reflect the deceased’s intention.

The deceased died in 2009, leaving her last Will dated 10 November 1995. She had two sons, one of whom had predeceased her.

The deceased’s Will was drafted in relatively simple terms, however, in light of certain statutory presumptions, some doubt arose as to the practical effect of those provisions.

Clause 4 contained a specific gift of shares to the deceased son, Donald and clause 5 gifted the residue of the estate to “such of” the deceased’s children who shall survive her and “if more than one in equal shares as tenants in common”.

As Donald had not survived the deceased, there were questions as to who should receive his share of the estate. The surviving son, Graham commenced the proceedings on the basis that he should receive the share of the estate which Donald would have received had be survived. The children of Donald defended the proceedings claiming that they were entitled to receive Donald’s share.

Section 33B of the Succession Act 1981 (Qld) states that where property is left to a person who does not survive the willmaker for 30 days then the Will takes effect as if the person had died immediately before the willmaker. Section 33N goes on to state that where a willmaker makes a disposition of property to a beneficiary and that beneficiary does not survive the willmaker for 30 days, then the children of that beneficiary take the original beneficiary’s share of the property. This is provided there is no “contrary intention” expressed in the Will.

Graham argued that the words “such of” and “as shall survive me and if more than one in equal shares as tenants in common” contained in clause 5 of the Will was an intention contrary to section 33N. He submitted that when the Will was read as a whole the deceased must have intended that these words also applied to clause 4. The children of Graham filed a cross-application seeking rectification of the Will by deleting the words “such of” and “as shall survive me” from clause 5 of the Will.

Justice Mullins decided that the plain meaning of the words in clause 4, read in conjunction with section 33N meant that the gift under clause 4 passed to Graham’s children. Her Honour, having regard to the scheme of the Will and reading the Will as a whole, did not accept Graham’s argument as the relevant clauses dealt with two seperate gifts in seperate clauses with different words.

On the issue of whether the Court would order rectification of the Will by removing the contrary intention in clause 5, Justice Mullins had regard to section 33 of the Act which allows the Court to make an order to rectify a Will if it is satisfied that the Will does not carry out the willmaker’s intention.

The Court considered evidence by the solicitor who drafted the deceased’s Will. The solicitor stated that it was the deceased’s intention that clause 5 provide that, if a son predeceased her, that son’s children were to take that son’s share. Even though the deceased reviewed the terms of her Will prior to executing it, she did so under the incorrect advice provided to her by the solicitor in relation to his mistaken interpretation of section 33.

Her Honour held that these circumstances were sufficient for an order for rectification to be made to the Will to carry out the deceased’s intentions. The deletion of the words by way of rectification did not alter the Court’s conclusion of the construction of clause 4 of the Will and in fact, reinforced it.

Comment - This decision clarifies the circumstances in which the Court will order rectification of a Will since broader rectification powers were introduced into the Act. The amendment implemented recommendations made by the National Committee for Uniform Succession Laws as modified by the Queensland Law Reform Commission. Despite this broader power to rectify a Will, there is no doubt that it is desirable that a Will reflects the willmaker’s intentions at first instance.

Notwithstanding the fact that the Court does have the power to amend a Will in such way it is vital to ensure that when preparing your Will you get proper and correct advice to ensure that your Will clearly reflects your wishes.