Severing a will

By Browne Linkenbagh in Blog on August 30, 2017

When I read ‘severance’ and ‘severing’, I think of the villain turned hero from the Potter books, Severus Snape. For those who think similarly, remove that pensieve from your mind! For those who don’t know what I’m writing about, you’ve effectively missed a second childhood. But you wouldn’t be distracted when considering this article about when a Supreme Court can remove part of a will from a grant of probate, meaning that the grant is only in relation to the balance of the will.

Jurisdiction to prevent an abuse of process

The Supreme Court of each Australian jurisdiction has an inherent jurisdiction to omit words from a will so that its processes are protected from abuse and to prevent unnecessary harm. The jurisdiction may be exercised where the words in a will lack a dispositive effect or a testamentary purpose, and are offensive, defamatory or the like. However, the jurisdiction is exercised sparingly. Accordingly, in Hoffman (deceased) [2016] SASC 110 the court declined to remove words which explained that no provision was made to a daughter because the testator considered her to be a compulsive liar. Whilst the court was satisfied that the words were offensive, defamatory and had no dispositive effect, it considered that they explained the reasons for the exclusion of the daughter and therefore had a testamentary purpose.

Similarly, in In the estate of Welsh (dec’d) [2014] SASC 13 the court was disinclined to remove words from a will describing the deceased’s wife as “a compulsive and addicted gambler”.

Jurisdiction to remove invalid parts

Testamentary undue influence

The issue of severance arose in a different way in Nicholson v Knaggs [2009] VSC 64. After finding that undue influence was used to procure the relevant will, the court considered whether, having found that only a discrete provision in the will had been included as a result of the improper conduct, it could sever the compromised provision but admit the remainder of the will to probate. The judge referred to Re Fenwick (decd) [1972] VicRp 75; [1972] VR 646 where the court said that

In an appropriate case, probate may be granted in respect of proportion only of a document executed as a will, omitting other portions where, for example, by fraud, mistake or inadvertence there has been included in the instrument words which in truth were not part of the will of the testator[1].

Based on this and similar authority, the court in Nicholson v Knaggs excised words contained in one clause of the relevant will which benefited the undue influencer, and admitted the balance to probate. The judge added that he was satisfied that the amendments would not cause other words of the will to produce a result different from that which was intended by the testator[2]. The severance of the bequest to the inducer meant that his wife received one third of the residual estate, rather than he and his wife. In this sense, the result is a pyrrhic victory as the “successful” family and charities which established the undue influence received nothing extra from the estate.

Lack of knowledge and approval

The issue of severance recently arose in Hobhouse v Macarthur-Onslow [2016] NSWSC 1831. The will of Lady Macarthur-Onslow was unsuccessfully challenged on the basis of testamentary capacity. However, the judge concluded that the testator did not know and approve certain parts of her last will. The court considered the will could be admitted to probate with part deleted. The judge considered that that question was “authoritatively determined” by a statement of principle in Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153[3]. That case declared it to be “undoubted law” that a Court of Probate may:

[I]n an appropriate case, grant probate … in respect of a portion only of a document which has been executed as a will, omitting other portions as having formed no part of that to which the execution of the document really applied, as for example, where by fraud or mistake there has been included in the instrument words which in truth were not part of the testator’s will[4].

Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153 was described by Kitto J as a case with a “curious history”. The deceased’s will had been drawn up on instructions given to her accountant, but, in preparing the will the instructions had been departed from. The NSW Supreme Court refused the application for probate because the judge was not satisfied that the deceased knew and approved of the whole of its contents. Given that finding, Osborne, a beneficiary under the will[5], sought a grant of administration cta with the omission of significant parts of the will, being:

(a) the appointment of executors,

(b) an annuity and legacy to the Home of Peace Hospital,

(c) the appointment of the drafting accountant as accountant to the estate and the authority for him to make professional charges, and

(d) the appointment of a particular named person as solicitor to the estate.

Restriction on severance

In the High Court of Australia, Kitto J (with whom Menzies and Windeyer JJ – the only other members of the court – agreed) stated that the effect of these changes would be that the Home of Peace would fail to get something which the deceased intended it to get, and Osborne would receive more than the testator intended. The judge referred to In re Horrocks; Taylor v. Kershaw (1939) P 198 as follows:

The will there under consideration contained a gift for objects described as “charitable or benevolent”. Evidence was given that the word “or” was inserted by a mistake on the part of the typist to whom the solicitor dictated the will, the solicitor having used the word “and”. In order to save the gift from the invalidity which would result from the use of “or”, the Probate Court was asked to strike that word out. The Court of Appeal considered that the alleged mistake had not been established by the evidence, but went on to hold that even if it had been established the case would not have fallen within the jurisdiction to exclude from the probate a portion of a document which otherwise was proved as a will. The reason was that… the word “or” could not be deleted without making the words “charitable” and “benevolent” qualify one another so that neither would then carry its full meaning. The fact that the actual intention of the testatrix would thereby be effectuated was not regarded as justifying a step which would produce this result. The principle which was applied… was expressed in the words: “the cases in which the Court has decreed probate with the omission of words, phrases or clauses have all been cases where the matter omitted was, so to speak, self-contained and its omission did not alter the sense of what remained”[6].

Allowable severance

Justice Kitto observed that In re Duane (1862) 2 Sw & Tr 590; (164 ER 1127) and Fulton v. Andrew (1875) LR 7 HL 448 were illustrations of the kind of case in which a clause may be omitted from probate without altering the sense of what is left – in each case a residuary gift was omitted. In Morrell v. Morrell (1882) 7 PD 68 and Goods of Schott (1901) P 190 involved a single word being omitted, but “every remaining word had precisely the sense it had before the omission, so that the will with the word omitted was exactly what the testator had believed he was signing”[7].

Application

Returning to the will before the High Court, Justice Kitto stated that “if the existing clause in favour of the Home of Peace were to be struck out, the gift to the appellant would necessarily have an effect different both from that which it has on the face of the instrument and from that which the deceased intended it to have. It would stand as a gift of the entire estate without qualification. While refusing recognition to one provision which the deceased did not know and approve, the Court would be turning another, which she knew and approved subject to a qualification, into one which, being unqualified, she did not know and approve. That, plainly, would be to go beyond the jurisdiction of the Probate Court”[8].

 Total invalidity

To add an extra issue to a consideration of when and what can be severed, it should be noted that in Brown –v- Guss [2014] VSC 251 the court said that “A will that has been the subject of undue influence, within the meaning recognised by the courts of probate, is invalid”, citing Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457. There was no reference to Nicholson v Knaggs on this point. Whilst severance was not argued, this statement suggests that the whole will is invalid, and not just a severable part.

All of this suggests that severance will not be a common outcome when a will is challenged. Clearly, it will not be easy to achieve.

 

Darryl Browne[9]

[1] [1972] VicRp 75; [1972] VR 646 at 651.

[2] [2009] VSC 64, [705].

[3] (1960) 105 CLR 153,159 to 162, relying on Rhodes v Rhodes (1882) 7 App Cas 192, 198; Morrell v Morrell (1882) 7 PD 68, 70; Re Horrocks; Taylor v Kershaw (1939) P 198; Ebert v The Union Trustee Company of Australia Ltd [1960] HCA 50; (1960) 104 CLR 346, 351.

[4] [1960] HCA 89; (1960) 105 CLR 153, 162.

[5] The defendant Smith was the deceased’s widower. He was a beneficiary on intestacy.

[6] Ibid at [10], 161 citing (1939) P 189, 219.

[7] Ibid at 161. In the Goods of Boehm (1891) P 247 was treated “with some reservation”.

[8] Ibid at 162, [14].

[9] Darryl Browne is the principal of BROWNE. Linkenbagh Legal Services. He is an Accredited Specialist in Wills and Estates. He is the Chair of the Law Society’s Ethics Committee. He has been a member (2010- 2014, 2016), Chair (2014) and Deputy Chair (2016) of the Elder Law and Succession Committee. He is a Councillor of the Law Society, a member of the Specialist Accreditation Board and the Society’s Property Law Committee, Criminal Law Committee, Disclosure Committee and Fidelity Fund Management Committee. He is a member of the Law Council of Australia’s Elder Law and Succession Committee. He is a member of the Legal Aid Commission Board and the University of Sydney’s Law Extension Committee. He writes bi-monthly Case Notes on wills and estates for LSJ and occasional other articles for that and other journals. He facilitates the Law Society’s online Wills and Probate Procedures for Solicitors. He designed and presents the Masterclass on Powers of Attorney. He is a member of STEP and SMSF Association. The opinions expressed in this article are his own.

 

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