IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Trusts, Equity and Probate List
S PRB 2019 08146

IN THE MATTER of s 31 of the Wills Act 1997 (Vic)

- and –

IN THE MATTER of Order 12 of the Supreme Court (Administration and Probate) Rules 2014 (Vic)

- and – 

IN THE MATTER of DINO CUDIA, deceased

SANTINA GIUSEPPINA TRIGAZIS (who sues as the Executor of the Estate of DINO CUDIA, deceased)	Plaintiff	
		
v  		
		
SIMON MAYNARD & ORS 
(according to the attached Schedule)	Defendants	

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JUDGE:	Daly As J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	27 July 2021	
DATE OF JUDGMENT:	10 August 2021	
CASE MAY BE CITED AS:	Trigazis v Maynard & Ors: IMO the will and estate of Dino Cudia (dec’d)	
MEDIUM NEUTRAL CITATION:	[2021] VSC 477	
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WILLS – Application for rectification of will under s 31(1)(b) of the Wills Act 1997 (Vic) – General principles – Whether will gives effect to testator’s instructions – Finding that there is clear and convincing proof that the will does not give effect to the testator’s instructions – Application granted.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Ms U Stanisich	BJT Legal	
			
For the Defendants			

HER HONOUR:
Introduction and background
1	Dino Cudia (‘deceased’) died on 29 March 2019.  The deceased’s wife, Lorraine Beryl Cudia, (‘Lorraine’), predeceased him on 29 July 2008.  The deceased is survived by his two children with Lorraine: Santina Giuseppina Trigazis (‘Santina’) (the executor of the estate and the applicant in this proceeding) and Andreas John Cudia (‘Andreas’), and his three children from a prior marriage, being Dean Maynard, Simon Maynard and Adam Maynard (‘defendants’).
2	The deceased’s estate is valued at $617,509.10, comprised of $615,000 invested in controlled moneys and $2,509.10 in trust.
3	Probate of the deceased’s will dated 18 June 2004 (‘will’) was granted to Santina on 5 June 2019.
4	The will was made pursuant to a mutual will agreement between the deceased and Lorraine, which was also executed on 18 June 2004 (‘mutual will agreement’).
5	The mutual will agreement provides as follows:
The parties are husband and wife and are concerned to provide properly for each other and for their children on the unfortunate death of one or both of them and wish to establish an irrevocable certainty in that regard after seeing the unfortunate consequences of improper provisions being made within Dino’s family.
NOW THIS CONTRACT WITNESSETH
1.	Both parties shall make Wills in accordance with the draft Wills forming the Schedule to this Contact.
2.	Upon the death of the first of the parties to die the remaining party shall hold the assets of the deceased party on trust for his or her own use for their life and to leave their own assets to the children so that the effect of the Will of the deceased partner and the Will of the surviving partner is to leave all of the family assets to their children.
3.	Each party agrees and covenants with the other not to change the substance of their Wills in this regard even if they are required by necessity or law to execute a further Will.
6	The will provides, in part, as follows:
2.	THIS WILL is made pursuant to a Contract of even date between myself and my Wife LORRAINE BERYL CUDIA, to provide for each other in the event of the demise of one and thereafter to provide certainty in our provision for our children.
3.	I APPOINT my said wife and my daughter SANTINA GIUSEPPINA CUDIA as Executrices of this my Will and Trustee of my Estate AND I GIVE DEVISE AND BEQUEATH to them the whole of my estate both real and personal upon the following trusts and dispositions:
(a)	To pay all my just debts, funeral and testamentary expenses and any duties that are payable as a result of my death;
(b)	To hold the same for the use and benefit of my wife for and during her life; and
(c)	On her death for such of my children as shall survive me absolutely as tenants in common in equal shares.
4.	IN THE EVENT that any of my children should predecease me leaving a child or children surviving them then that such child or children shall take the share to which their parent would otherwise have been entitled upon them attaining the age of twenty-one (21) years and if more than one as tenants in common in equal shares.
7	The mutual will agreement, the will and Lorraine’s will were prepared by Michael Morrow, then a solicitor at Mulcahy & Co. 
The proceeding 
8	In this proceeding, Santina seeks to have the will rectified pursuant to s 31(1)(b) of the Wills Act 1997 (Vic) (‘Act’), as follows:
(a)	at clause 3(c), adding the words “Santina Giuseppina Trigazis (formerly Cudia) and Andreas Cudia” after the words “my children”; and
(b)	at clause 4, deleting the words “my children” and replacing them with the words “my said children Santina Giuseppina Trigazis (formerly Cudia) and Andreas Cudia”.
9	On 23 April 2020, Keith JR made orders joining the defendants to the proceeding.
10	On 23 July 2021, the solicitor for the defendants sent an email to the Court advising that the defendants consent to Santina’s application to rectify the will, subject to their costs being reserved.  Accordingly, the application is unopposed.
Evidence
11	Santina relied upon an affidavit sworn by her on 27 November 2019 in support of her application to rectify the will.  She deposed, in summary, as follows:
(a)	her parents’ joint instructions to Mr Morrow were that their joint estates were ultimately to pass to her and Andreas, being the only children of the deceased’s and Lorraine’s marriage;
(b)	Mr Morrow has told her that, at the time he prepared the deceased’s will and Lorraine’s will (‘wills’), he assumed that she and Andreas were their only children, and referred to her and Andreas by the class of “children” without having enquired of the deceased or Lorraine whether either has other children from prior relationships;
(c)	the deceased’s first marriage was to Beverley Maynard in 1965, and she does not know the date they divorced.  The deceased married Lorraine in 1979;
(d)	the deceased had three children from his first marriage, being the defendants;
(e)	she was not present when the deceased and Lorraine gave their instructions for the wills, and her parents did not discuss with her how they had dealt with their estates in the wills;
(f)	Mr Morrow informed her that her parents only wished to benefit her and Andreas in the wills, and the purpose of the mutual will agreement was to ensure that, regardless of the order of death of the deceased and Lorraine, she and Andreas would inherit their assets; and
(g)	she knew that the deceased had three children from his first marriage, but the deceased had minimal contact with them, and none of the defendants attended the deceased’s funeral.
12	Santina also relied upon the affidavit of Mr Morrow sworn on 27 November 2019.  In his affidavit, Mr Morrow deposed as follows:
(a)	he prepared the wills and the mutual will agreement;
(b)	he had met the deceased and Lorraine in the early 1990s, and they were well known to him socially as well as in a professional context;
(c)	in that regard he had regular social contact with the deceased and Lorraine over the years and, in 1999, he recalled speaking with the deceased about his arrival in Ballarat and his earlier life.  The deceased did not mention on that occasion or any subsequent occasion that he had children from a prior relationship;
(d)	in 2004, he was an employee solicitor of Cinque Morrow of Ballarat.  He has contacted the firm Cinque Oakley Bryant (the successor to Cinque Morrow) to enquire if they still have the deceased’s file, but as at the date of swearing his affidavit it could not be located;
(e)	he could not remember the exact date when the deceased and Lorraine initially came to see him, but he had a good recollection of his dealings with the deceased and Lorraine when they made the wills;
(f)	he understood that Lorraine was concerned to protect her two children if she died before the deceased.  At the time, she was suffering from indifferent health, and she expressed concern that once she died the deceased would find a “replacement“ for her, and jeopardise the children’s inheritance from her;
(g)	he explained to the deceased and Lorraine the ability of couples to made mutual will agreements, referring to the decision of the High Court in Barnes v Barnes, which had been delivered the previous year;
(h)	he received instructions to prepare simple wills to the effect that each of the deceased and Lorraine would leave life interests in their respective estates to the other and, on their deaths, their estates would pass to be shared equally by their two children, Santina and Andreas;
(i)	he prepared the wills and the mutual will agreement and explained the documents to the deceased and Lorraine.  All three documents were signed at the same time by the deceased and Lorraine;
(j)	neither at the time of his taking instructions, nor subsequently, did the deceased or Lorraine inform him that either of them had children other than Santina and Andreas, and he did not specifically ask the deceased or Lorraine if that had any children from any prior relationship;
(k)	when preparing the wills, he did not refer to either Santina or Andreas by name, as it was the clear intention of both the deceased and Lorraine when they gave him instructions that the ultimate beneficiaries of their estates were “their” children.  In the wording of the wills he referred to Santina and Andreas as the class “such of my children as shall survive me”, being unaware at that time that the deceased had children from an earlier marriage;
(l)	the mutual will agreement in both the recital and clause 2 defines “the children” as “their children”;
(m)	he did not know that the deceased had three other children until the deceased’s estate was being finalised and he noticed in the deceased’s death certificate that five, not two children were named;
(n)	there was no mention of the fact that the deceased had other children at the deceased’s funeral, and as far as he is aware the defendants did not attend the funeral; and
(o)	he supported the application by Santina to rectify the will and, if the application was unopposed, he undertook to meet the reasonable costs of the application.
13	Mr Morrow gave evidence at the hearing.  Mr Morrow gave evidence that he had a clear recollection of his dealings with the deceased and Lorraine when they made the wills, as he found it a confronting interview in which Lorraine informed him that she had been diagnosed with bowel cancer, which, despite operative intervention, had spread to her lungs, and that a tumour had been found in her brain.  Lorraine’s news was all too familiar to him, as had recently gone through a similar situation with his own wife, and his stepchildren were of a similar age to Santina and Andreas.  Further, he recalled that Lorraine said in front of him and the deceased that her greatest fear was that when she was gone the deceased would find someone to replace her, and either that person or their children would recover the benefit of Lorraine’s hard work which she wanted to go to Santina and Andreas. 
14	Mr Morrow gave evidence that he had attended a continuing professional development conference in 2004, during which the decision in Barnes had been discussed.  He mentioned to the deceased and Lorraine that it may be a good idea that he and Lorraine had an irrevocable arrangement that would, after she died, provide for what both the deceased and Lorraine had intended.  
15	Mr Morrow gave evidence that it was the first mutual will agreement that he had drafted.  He explained to the deceased and Lorraine that, when the first of them died, the mutual will agreement created a trust that had to be honoured by the survivor, and that the entire estate would eventually go to Andreas and Santina.  He gave evidence that he did not refer to Andreas and Santina by name when drafting the wills.  That was a step he took himself, not on the instructions of either the deceased or Lorraine.
16	The defendants filed four affidavits in opposition to the application, being the affidavits of Dean Maynard sworn on 17 May 2020 and the affidavits of Adam Maynard, Simon Maynard and Beverley Maynard sworn on 18 May 2020.  However, given the defendants have consented to the application, it is not necessary to traverse this evidence in great detail.
17	In summary, the defendants’ evidence confirmed that none of the defendants were involved in the preparation of the wills, nor discussed the deceased’s intentions with him.  Following the end of the deceased’s first marriage, the defendants had only sporadic contact with the deceased, and did not have a close relationship with him.  Their stepfather raised them as if he were their father.
Submissions
18	Santina submitted that s 31 of the Act empowers the Court to rectify a will where there was been a clerical or drafting error which results in the testator’s instructions not being properly recorded.  Extrinsic evidence of the testator’s intentions, including the file of the solicitor who prepared the will, may be relied upon to support an application for rectification.  Santina accepted that there must be clear evidence of the testator’s intention in support of the application, and that Santina needs to satisfy the Court on the balance of probabilities that the deceased intended to execute the will in the terms sought by the application.
19	As for the principles in relation to rectification under s 31 of the Act, Santina referred to the decision of Whelan J in Re Estate of Prevost (dec’d), as follows:
1.	Before the power of rectification can be exercised the Court must be satisfied that the will was so expressed that it failed to carry out the testatrix’s intentions, and also what it was that the testatrix did intend concerning the part of the wills which is to be rectified.
2.	What must be shown is what the testatrix’s actual intention was, not what her intention probably would have been had she thought about the matters.
3.	Although the standard of proof is on the balance of probabilities, clear and convincing proof is required.
4.	It is not sufficient for rectification to establish that the testatrix would not have wished for an intestacy, or would not have wanted her property to go in a way that, in the events which have happened a particular clause results in the property going.
5.	If there is no evidence to show what the testatrix’s intention was in the event of certain things happening, the Court cannot rectify the will.
20	Santina submitted that, while it is a grave matter to rectify a will, the authorities recognise that s 31 of the Act is a beneficial provision which ought be given a fair, large and liberal interpretation.
21	Santina submitted that Lorraine’s will is clear: on her death, her estate passes to the deceased for life, and then to “my children”, namely Santina and Andreas.  The will was intended to mirror Lorraine’s will, and this is evident from the terms of the wills and the expressed purpose of the mutual will agreement.
22	Santina submitted that definition of “the children” does not change in the mutual will agreement, which would be necessary if the will was not intended to mirror Lorraine’s will.  Mr Morrow used the term “my children” in the wills instead of specifically naming Santina and Andreas, as he understood this was give effect to the instructions to make mirror mutual wills.  By using that term, Mr Morrow, not the deceased, inadvertently introduced three new beneficiaries, being the defendants.  Mr Morrow received no instructions to include the defendants, and he was unaware of their existence.  As Mr Morrow was instructed to make wills such that the deceased’s and Lorraine’s entire estate would pass to the other and then to Santina and Andreas, the will as drafted did not give effect to the deceased’s instructions.  Based upon Mr Morrow’s evidence alone, which arguably was given contrary to his own interests, the will should be rectified.
23	Santina submitted further that an objective consideration of the effect of the will in the context of the mutual will agreement underscored that there is an error in the drafting of the will.  The result of the error is that the mutual will agreement did not established a “irrevocable certainty” as was the intention recorded in the mutual will agreement.  
24	In this regard, Santina submitted as follows (emphasis in submissions):
Instead, drafting the error meant that the entire estate of Lorraine and the deceased would pass in a random fashion depending on who died first and how the property was held. That is:
a.	If Lorraine died first:
i.	without having assets that passed through her estate (as they passed by survivorship), the deceased’s Will would prevail and the marital assets would pass to the deceased’s five children.
ii.	having assets that passed through he estate, Lorraine’s Will would be effective such that her estate would ultimately pass to the deceased’s two children and anything owned outside of Lorraine’s estate would pass to the deceased’s five children.
b.	if the deceased died first:
i.	without having assets that passed through his estate (as they passed by survivorship), Lorraine’s Will would prevail and the marital assets would pass to the deceased’s two children.
ii.	having assets that passed through his estate, the deceased’s Will would be effective such that his estate would ultimately pass to the deceased’s five children and anything Lorraine owned outside of the deceased’s estate would pass to the deceased’s two children.
25	Santina submitted that, effectively, in circumstances where the major asset was held jointly by the deceased and Lorraine, the result if there was no rectification is that, if the deceased died first, Santina and Andreas would receive everything and if he died second, his five children would receive everything.  Such an outcome would be irrational, and not consistent with the mutual will agreement.
26	Santina submitted that the evidence demonstrates the clear instructions provided by the deceased and Lorraine to Mr Morrow were that Santina and Andreas were to benefit from the estate in equal shares on the death of the surviving spouse.  The evidence given is of the actual instructions of the deceased, and not simply what the deceased would probably have wanted if he had thought about it.  Santina submitted further that the evidence is clear and convincing, particularly given Mr Morrow is an independent witness, an experienced solicitor and has given unchallenged evidence arguably against his own interests.
27	Santina submitted further that the defendants’ evidence provides support for the application, as it demonstrates that the defendants had little to no relationship with the deceased, their stepfather treated them as his own children, they adopted their stepfather’s surname and none of the defendants have lived with the deceased, or in Victoria, since 1974.  Santina submitted that such evidence supports a conclusion that it is extremely unlikely that the deceased and Lorraine intended that the defendants benefit from the estate.
28	Santina submitted that, taking into account the gravity of rectifying a will, the evidence meets the high standard required to satisfy the Court that there was been an error in the preparation of the will such that the will does not give effect to the deceased’s instructions.
Discussion
29	Section 31 of the Act provides relevantly as follows:
(1)	The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied that the will does not carry out the testator’s intentions because—
(a)	a clerical error was made; or
(b)	the will does not give effect to the testator’s instructions.
(2)	A person who wishes to make an application for an order under subsection (1) must apply to the Court within 6 months from the date of the grant of probate.
30	Santina’s application for rectification was made by summons filed 29 November 2019, being within six months of the grant of probate.  Accordingly, the application was made within time.
31	Accordingly, the only issue to be determined is whether the will should be rectified because it did not give effect to the deceased’s instructions within the meaning of s 31(1)(b).
32	In my view, this is one of the rare cases where the remedy of rectification is capable of being readily granted, with little room for doubt.  The evidence of Mr Morrow is dispositive of the application.  Mr Morrow is an experienced legal practitioner, with direct knowledge of the instructions provided by the deceased and Lorraine in respect of the preparation of the wills.  He had a very clear and distinct recollection of the conversation, without the need to resort to file notes, which is understandable, given the social and professional relationship between them, and the circumstances in which the deceased and Lorraine consulted him in 2004.  He gave evidence that it was the intention of the deceased and Lorraine that, upon their deaths, their entire estates would pass to their children, being Santina and Andreas, and that the reference to “my children” in the will was made in ignorance of the existence of the defendants.  I found Mr Morrow to be a credible and convincing witness.  Accordingly, there is clear and convincing proof that the will, as drafted, does not give effect to the deceased’s instructions.
33	I also accept Santina’s submission that, were the will not rectified, the effect would be that the deceased’s and Lorraine’s estate would pass to different beneficiaries depending upon who died first, and depending upon what fashion the matrimonial property was held, which is in direct conflict with the expressed intention of the mutual will agreement to create an “irrevocable certainty” with respect to the distribution of the estate.
34	Accordingly, I will grant the application, and will seek further submissions on the question of costs, which have been reserved by agreement between the parties.

SCHEDULE OF PARTIES

		
	S PRB 2019 08146	

BETWEEN:		

SANTINA GIUSEPPINA TRIGAZIS (who sues as the Executor of the Estate of DINO CUDIA, deceased)	Plaintiff 	
		
- v -		
		
SIMON MAYNARD	First Defendant	
		
DEAN MAYNARD	Second Defendant 	
		
ADAM MAYNARD	Third Defendant