By Darryl Browne -
Key decisions
- Kay v Miller [2021] QSC 185
- Lewis v Lewis [2021] NSWCA 168
- Wylie v Wylie [2021] QSC 210
- Masih v Masih [2021] QSC 207
- Grant v Grant [2021] NSWCA 181
- NSW Trustee & Guardian v Reid [2021] NSWSC 1053
- Case 649701 (concerning Nulis Nominees (Australia) Limited)
Proper law for rectification of a will
Greg Miller and his partner, Jocelyn Villaneuva, died in a helicopter crash on 6 September 2019. The order of death could not be established. Greg was younger so was presumed to have died last (by virtue of Conveyancing Act 1919 (NSW), s 35). Greg’s will contained inconsistent provisions disposing of his estate. The executor sought rectification of his will. The first issue to be determined was the proper law to be applied to determine the application for rectification.
Greg resided in NSW, died in NSW, owned property in this state, and made his will here. However, he also owned property in Queensland, so his executor obtained a grant of probate from the Supreme Court of Queensland. The executor applied to the Queensland Court for rectification of the will. The Court observed that questions of construction of a will are generally determined according to the law of the testator’s domicile at the date of the will, unless there is evidence that the testator intended otherwise. The Court found no case law on the proper law for rectification of a will, but decided that it too should be the law of the testator’s domicile (Kay v Miller [2021] QSC 185 (Brown J) at [15]). That law was NSW.
Clause 2 of Greg’s will appointed his executor. Clause 3 left his estate to Jocelyn.
Clause 4 stated that if Jocelyn didn’t survive him, the following provisions applied in lieu of clause 2. Clause 5 appointed a replacement executor. Clause 6 gave Greg’s estate to his relatives. There was an inconsistency in the will as both clauses 3 and 6 purported to dispose of Greg’s estate.
The Court considered the drafting solicitor’s evidence, and particularly his file note, to find that clause 4 should have referred to clauses 2 and 3. The Court considered that this was a clerical error as the ‘draughtsman has never really applied his minds to words introduced or omitted and never adverted to their significance and effect’ (at [29]). This allowed rectification pursuant to Succession Act 2006 (NSW), s 27.
The application had been made more than 12 months after Greg’s death. Accordingly, leave was needed to bring the application. The Court granted leave as Greg’s estate had not been distributed, there was no evidence of prejudice, and a satisfactory explanation for the delay was provided (at [34]).
