The ACT Supreme Court has recently delivered judgement in a case involving Section 12A (Rectification) of the Wills Act 1968. This was the first time Section 12A was considered by the ACT Supreme Court, so pracititioners have finally been provided with judicial guidance on the application of the rectification provisions in the Wills Act.
The case involved a Will executed by Mr Rummer on 20 August 2015. Mr Rummer’s Will made provision for his half-sister, a close friend and gave the residue of his estate to his friend Judith, who was also the defendant in the proceedings.
Mr Rummer subsequently dictated some amendments to his 2015 Will to his nominated executor, who was the Plaintiff in the proceedings, while the executor was at his bedside. Handwritten amendments were made to the 2015 Will which were signed by Mr Rummer in the presence of a registered nurse. The handwritten amendments constituted a Codicil to the 2015 Will.
Among the changes were the following:
- The deletion of the gift to Mr Rummer’s close friend (Roy);
- An amendment to give “most of the rest and residue” of his estate to the defendant; and
- Inserting the words after the gift of the residue to the Defendant of “amounts as directed to my Executor to my friends Pat … and Peter…”
Sadly, Mr Rummer died on the same day he signed the “Codicil”.
The Plaintiff sought rectification of Codicil seeking an order that the residue clause be amended to replace the words “most of the rest and residue” with “one-half of the rest and residue”. Based on conversations that the Plaintiff had with Mr Rummer, the Plaintiff’s position was that Mr Rummer meant to give the Defendant only one-half of the residue of his estate and that the other half was meant to be divided between friends Pat and Peter.
The task before the Court was to consider the proper construction of the following words, and to consider the application for rectification by the Plaintiff:
- “Most of the rest and residue” and
- “amounts as directed to my executor”.
The Court ultimately held that:
- notwithstanding the insertion of the words “most of the rest and residue” the testator did not intend the defendant to only receive one-half of the residue. Rather, the testator intended that the defendant should receive the rest and residue of the estate in full after payment of two monetary gifts to Pat and Peter of $35,000 each; and
- The Court also found that the gift to Pat and Peter of “amounts as directed” failed for uncertainty, however, the testator’s intention was that Pat and Peter at least receive some money and that having regard to the submissions by the parties, the testator probable intention was that Pat and Peter receive an amount of $35,000 each.
“Most of the rest and residue”
With regard to the words “most of the rest and residue”, the Court stated the following:
“I reject the plaintiff’s submission that the word ‘most’ should be construed to mean ‘half’, for a number of reasons.
First, the express words of the Codicil dictated by the testator are ‘most’ of the residue. The ordinary meaning of that word is ‘in the greatest quantity, amount, measure, degree, or number’ (Macquarie Dictionary, 7th ed). It denotes a quantity greater than ‘more’. The plain meaning of the word is not ‘half’.
The word ‘most’, in my view, reflects the non-legal thinking of a dying man that he needed to replace the word ‘ALL’ in the Will (that had been drafted by a solicitor) with a different word, as he was now allocating some of the money that would previously have formed part of the residue to two other people”
“Amounts as directed to my Executor”
With regard to the words “amounts as directed to my executor to my friends Pat….and Peter”, the Court’s reasoning was interesting.
The Court disagreed with comments in Charles Rowlands publication “The Construction or Rectification of Wills” which state that “It would not be enough that the testator’s actual or probable intentions are known exclusively from external sources”.
The Court disagreed with the above comment, indeed drawing from external sources and saying that “had the testator known the lack of stipulation of an amount or a mechanism for calculation of an amount would have the effect of the gifts to his two friends failing for uncertainty, he would have stated a sum for each”.
In determining the amount to award each of Pat and Peter, the Court had regard to a range of factors and principles, including the “armchair principle” rule of construction.
This case sets the precedent for cases involving section 12A in the ACT and sheds light on the legislative of“probable intention”. It is a well written and seemingly well-reasoned judgement highlighting key principles of construction and rectification of Wills.