Rectification of a Will: Case summary – Dillon & Anor v Henderson [2018]

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On 12 October 2018, the Supreme Court of Queensland handed down a decision in Dillon & Anor v Henderson [2018] QSC 236 which concerned an application for the rectification of a Will by a deceased testator who was found to unintentionally revoke a previous overseas Will made by him and relevant to the disposal of his overseas assets.

The facts

Mr Barry Dillon (the deceased) had extensive business interests in Malaysia and before returning to Australia for medical treatment, prepared a Will in Malaysia (Malaysian Will) to dispose of his Malaysian assets on his death.

Upon returning to Australia, the deceased purchased a precedent Will kit and completed and executed the Will form in that kit.  This resulted in the Will dated 13 June 2018 (Australian Will) which contained the general revocation clause which revoked all previous Wills.

The deceased’s children (the applicants), in agreement with the deceased’s Malaysian business partner (the respondent) originally sought a declaration pursuant to section 6 of the Succession Act 1981(Qld) (the Act) that the Australian Will did not revoke the Malaysian Will on the basis that it was the deceased’s intention to use the precedent Will kit to dispose of his Australian assets only.

The court considered it doubtful that its jurisdiction extended to the making of a declaration that the Australian Will took effect in a way that was inconsistent with the unambiguous revocation clause.  Therefore, at the direction of the court, the applicants made a substitute application for the rectification of the revocation clause in the Australian Will, pursuant to the Court’s jurisdiction under section 33 of the Act, so that it did not revoke the Malaysian Will.

The law

Section 33 of the Act gives the court the jurisdiction to rectify a Will in circumstances where it is satisfied that the Will does not carry out the testator’s intentions due to:

  1. a clerical error; or
  2. where the Will does not give effect to the testator’s instructions.

The issue to be determined by the court was therefore whether it was satisfied by the evidence provided that the Australian Will did not carry out the deceased’s intentions because either a clerical error was made in its drafting or because it did not give effect to the deceased’s instructions.

The decision

The court considered there to be sufficient evidence to be satisfied that, in making the Australian Will, there was an unequivocal intention by the deceased to dispose of his Australian assets only, without affecting the operation of his Malaysian Will.

In determining its jurisdiction, the court considered that section 33 of the Act can apply to a homemade Will, at least in the case of clerical error.  It recognised the case of Vescio v Bannister [2010] NSWSC 1274 as authority for the proposition that the term “instructions” in section 33 of the Act refers to instructions communicated by one person to another and that it follows that the section cannot be applied to a will composed and written personally by a testator.  The Court was of the view however, that in the circumstances of this case, it could not be said that the completion of a printed Will form by the deceased amounted to him “composing and writing his Will”.

The court also recognised that it could be argued the deceased made a clerical error in failing to amend the standard revocation clause.  Thus, the court considered it appropriate and within its jurisdiction to grant the order for rectification of the revocation clause sought by the parties.

Lessons

This case highlights the importance of carefully considering standard Will provisions to ensure they accurately reflect the testator’s intentions.  A good estate planning lawyer can review and if necessary amend, standard provisions such as revocation clauses, having the required legal knowledge to give correct consideration to a testator’s circumstances and instructions.

Seeking advice from an estate planning lawyer at the time of preparing a Will can avoid the risks involved in DIY Will making and better ensure all intentions of the testator are accurately understood and reflected in their Will.  The costs of a professionally prepared Will are always much, much less than the costs of litigation and court action to seek to remedy defects.

This article was written by Ana Hatherley and Andrew Lind.

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