Tom Finch died on 1 May 2014. Probate of his last Will dated 29 October 2012 was granted to the executors Gregory Finch, Joy Bazley and Michelle Jeffress on 3 December 2014. Clause 4 of the Will provided:
I give the following:
(a) Any real property owned by me at the time of my death to my Daughter JOY MAREE BAZLEY;
(b) Any car owned by me at the time of my death to MICHELLE KAY JEFFRESS;
(c) My massage chair to KEVIN ZISKIE;
(d) Any jewellery owned by me at the time of my death to THELMA BLUTCHER and SHIRLEY GAGE.
In about 2007 Tom and his wife Thelma purchased a relocatable home at an estate called Golden Crest Manors. Following Thelma’s Death in October 2011 Tom continued to live in the relocatable home until 2013 when he moved into a retirement village/nursing home unit that he leased up to his death.
At the time of Tom’s death his estate had two significant assets: the relocatable home, and an exit entitlement payable to the estate under the retirement village unit lease. These have been converted to cash that is held on term deposit.
Following disputes between the executors in April 2017 Joy brought an application for the appointment of an independent administrator. Further Joy indicated her intention to bring an application for rectification of Clause 4(a) which left real Property to her however Tom was not the registered proprietor of any real property at the time of his death or at the time when he gave instructions for his Will.
Joy gave evidence that after Thelma died, Tom said on a number of occasions, words to the effect,
“Joy, I want you to have a home of your own. Your brothers Greg and Stuart both have their own homes. I understand you want to live in Brisbane. That is fine by me, but I want you to have my Nerang home when I die. You don’t have to live here. You can sell it and use the money to buy your own place in Brisbane.”
To rectify the Will the Court must be satisfied on the balance of probabilities that Tom did not want to leave Joy his real property as he had none at the time he made his Wills in 2011 or 2012; but clearly wanted Joy to receive the gift of the relocatable home under the Will.
The pivotal issue the Court had to address whether the Will as executed carries out the intentions of the deceased
If it is alleged that the will does not carry out the deceased’s intentions, the court engages in a four stage process:
(1) has a clerical error been made?
(2) does the will fail to give effect to the deceased’s instructions?
(3) if either or both of the above has occurred, has this caused the will not to carry out the deceased’s intentions?
(4) if so, then the court may make an order to rectify a will to carry out the deceased’s intentions.”
The Court was satisfied that the Will did not carry out the deceased’s intentions because it does not give effect to the deceased’s instructions. Tom did not intend to leave Joy his real property as he did not possess any at the time he made the Wills in 2011 or 2012. Furthermore the Court accepted evidence that Tom believed that the 2011 Will he signed had left the ‘house’ to Joy because he told her shortly afterwards that that was what he had done.
Accordingly deleting the word “Any real property owned by me at the date of my death” and inserting in lieu the words “My house” rectify clause 4(a) of the Will of October 2012.
The Court held that on the proper construction of the Will the Tom’s relocatable home passes under the gift in clause 4(a) of the Will.