Rea Costello (deceased) [2014] SASC 134 – Avoiding uncertainty when preparing a Will

I often find that clients have trouble choosing whom to appoint as their Executor in their Will. There seems to be a perception that when appointing an Executor, the Willmaker is bestowing a great honour on the person they choose. Some clients believe they will be offending their loved ones if they appoint one person over others, so they try to be fair by appointing an uncertain class of people, eg. “Any two of my daughters”. This can be problematic, as examined recently in Rea Costello.

Background

The background of Rea Costello is as follows:

  1. Ms C made her last Will in 2012;
  1. She passed away on 25 February 2013;
  1. In her Will, Ms C appointed “my solicitor, Jo-Anne Noreen Milen of 37b Beach Road, Christies Beach in the State of South Australia or any solicitor in her employ to act as my executor and trustee”;
  1. After Ms C died, Ms Milen applied for probate of Ms C’s Will;
  1. The Probate Registrar referred Ms Milen’s application to the Court for directions, as there were doubts surrounding whether or not Ms Milen’s appointment as Executor was void for uncertainty;
  1. Ms Milen applied to the Court for rectification of Ms C’s Will;
  1. Ms Milen swore in her affidavit that Ms C intended to appoint her the Executor of her estate and did not want to appoint a substitute Executor. Ms Milen advised Ms C to name a substitute Executor in the event that she was unable to act;
  1. Ms C instructed Ms Milen to add the appointment of a solicitor in Ms Milen’s firm to act as substitute Executor;
  1. Ms Milen explained to the Court that the uncertainty in the Will created by the words “or any solicitor in her employ to act as my executor and trustee” was due to a drafting error, and that Ms C’s intention was to appoint Ms Milen first, with another solicitor at the firm only to act in the event that Ms Milen was unable.

What did the Judge consider?

The Judge considered the following in making his judgment:

  1. There must be certainty in the appointment of an Executor under a Will;
  1. There have been several cases where Executor appointment clauses have found to be void for uncertainty. For example, in Re Baylis’s Goods, (1862) 2 Sw & Tr 613, the Willmaker appointed “any two of my sons” to act as Executor. This clause was not sufficiently certain to show whom the Willmaker intended to appoint as their Executor.
  1. Section 25AA of the Wills Act 936 (SA) provides that “if the Court is satisfied that a Will does not accurately reflect the testamentary intentions of a deceased person, the Court may order that the Will be rectified so as to give proper expression to those intentions.”

What did the Judge decide?

The Judge found that:

  1. The Executor appointment clause in Ms C’s was void for uncertainty, as there was no indication of an order of preference between Ms Milen and any solicitor in her employ;
  1. The evidence established a clear intention on Ms C’s behalf to appoint Ms Milen as her sole Executor;
  1. The application for rectification should be allowed.

The Judge ordered that the Executor appointment clause in Ms C’s Will be rectified in the following terms: “I appoint my solicitor Jo-Anne Noreen Milen of 27b Beach Road, Christies Beach in the State of South Australia to act as my executor and trustee”.

The Probate Registrar has refused my application for Probate. What should I do?

If your application for Probate has been refused, it is very important that you consult an experienced estate litigation lawyer. Please contact me should you require assistance or advice.

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