A Will Rectification Application is another way that a Will may be challenged.
Section 33 of the Succession Act 1981 (Qld) relevantly provides 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) An application for an order to rectify a will may only be made within 6 months after the date of death of the testator.
Section 33 allows a court to rectify a Will where it is satisfied the Will “does not carry out the testator’s intentions”. The will may not carry out the testator’s intention because of some sort of clerical error or the will prepared on behalf of the testator (often a lawyer) did not give effect to the testator’s instructions.
Section 33 was only inserted into the Succession Act 1981 (Qld) in 2006 (by the Succession Amendment Act 2005.) Prior to 2006, the Court’s powers to rectify a will were set out in section 31. Under the former section 31, the Court’s power of rectification extended only to insert material “accidently or inadvertently” omitted from the Will or to omit material that was “accidently or inadvertently” inserted into the Will.
The purpose of the replacement of the former section 31 with the new section 33 was, according to the explanatory memoranda accompanying the amending Bill, to broaden the court’s powers of rectification.
Until such time as the Supreme Court of Queensland offers guidance on the interpretation and application of the new section 33, it is suggested that it is still useful to consider how the court previously dealt with cases under the former section 31.
In the matter of Re Bryden (1975) Qd R 210, Dunn J held that where it was proven that the testator properly signed the Will, there was then a presumption that he or she “knew and approved its contents”. Justice Dunn went on to state that, where it is demonstrated that the will had been read by or to the testator, the presumption that the testator knew and approved of the contents of will “was a very strong one and could only be rebutted by the clearest of evidence”.
Arguably, these comments, although made in respect to of the former section 31, still apply. Accordingly, whilst the test of rectification under section 33 relatively is straight forward, any person who wishes to rectify a will must produce to the Court the “clearest of evidence” that the Will does not reflect the testator’s intentions.
In one of our matters, our Brisbane Estate Litigation team were successful in assisting a widow obtain orders from the Supreme Court under section 33 of the Act to rectify the will of her late husband. This matter involved us placing before the court detailed Affidavits which we argued clearly demonstrated that the testator’s Will did not carry into effect his testamentary intentions.