Minors

  • A will made by a minor is generally not valid: Succession Act 2006 (NSW) s 5(1).
  • A minor is a person under the age of 18 years: Interpretation Act 1987 (NSW) s 21.
    • Full age begins on the 18th birthday: Interpretation Act 1987 (NSW) s 37.
  • A minor who is married may make a will, or, if unmarried, may make a will in contemplation of a particular marriage: Succession Act 2006 (NSW) s 5(2).
  • The Supreme Court may make an order authorising a minor to make a will upon their (or another person’s) application: Succession Act 2006 (NSW) s 16.
    • The court may impose such terms as it sees fit: Succession Act 2006 (NSW) s 16(3).
    • An order will not be made unless the court is satisfied that:
      • the minor understands the nature and effect of the will,
      • the will accurately reflects the minor’s intentions, and
      • it is reasonable to make the order.
    • The court will not normally allow a minor to make a will unless:
      • some reason is disclosed as to why a will needs to be made by the minor,
      • the minor understands the nature of the testamentary act, and
      • the will is a free and voluntary disposition not unduly influenced by parents or guardians: Application of M (2000) 50 NSWLR 401.
  • A will made by a minor at the direction of the court must comply with the formalities, and one of the witnesses must be the Registrar in Probate: Succession Act 2006 (NSW) s 16(5).
    • The dispensing power — Succession Act 2006 (NSW) s 8 — cannot apply.
  • A will made by minor must be deposited with the registrar: Succession Act 2006 (NSW) s 16(6).
  • Capacity to marry and capacity to make a will are different — it is possible to have mental capacity to marry but not to have mental capacity make a will: Park v Park (No 1) [1953] 2 All ER 458; Park v Park (No 2) [1954] P 89.

Testamentary capacity

  • Soundness of mind, memory and understanding.
  • Knowledge and approval of the contents of the will.
  • A person may dispose by will of property to which they are entitled at time of death: - Succession Act 2006 (NSW) s 4(1).
    • This applies regardless of whether the entitlement existed at the date of the will: Succession Act 2006 (NSW) s 4(2).
    • This includes property to which the person’s personal representative becomes entitled (in that capacity) after death: Succession Act 2006 (NSW) s 4(3).
      • This applies regardless of whether the entitlement existed at the date of the will: Succession Act 2006 (NSW) s 4(4).
    • A person may not dispose of property of which they are a trustee at the time of death: Succession Act 2006 (NSW) s 4(5).
  • Lack of testamentary capacity may result from a disability.
    • The Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) may have some bearing on the development of the common law — Nicholson v Knaggs [2009] VSC 64.
      • Art 12 provides for equal recognition before the law, including legal capacity with others in all aspects of life.

Soundness of mind, memory and understanding

  • A will can only be made by a person of sound mind, memory and understanding: Marquis of Winchester’s Case (1598) 77 ER 287.
  • In the absence of these conditions, the entire will is void even if the delusion relates only to a particular gift or restriction: Woodhead v Perpetual Trustee Co Ltd (1987) 11 NSWLR 267.
  • A person of unsound mind can still make a will provided the will is made during a lucid interval: Cartwright v Cartwright (1793) 161 ER 923.
  • There is a rebuttable presumption that a duly executed will that is prima facie rational is that of a competent testator: Symes v Green (1859) 164 ER 785.
    • This presumption does not apply to an informal will: Fielder v Burgess [2014] SASC 98 [25].
  • Where suspicion is raised that the testator lacked sound mind, knowledge or approval, the person tendering the will must remove the suspicion with affirmative evidence: Estate of Johnson [2015] SASC 51.
  • The court does not conduct an independent investigation in every case to determine capacity in uncontested proceedings, only where an order is sought against the will founded on suspicion of lack of capacity: Docking v Schwarzkopf [2015] SASC 18 [8]; Phillips v McLean [2015] SASC 50; Spoehr v Health Services Charitable Gifts Board [2014] SASC 171 [38].
  • Capacity to make a will is assessed with regard to the particular will being made.
    • Application of the test of capacity will vary according to the complexity and the officiousness or inofficiousness of the will: Gray v Hart [2012] NSWSC 1435 [346].
  • The test for determining soundness of mind, memory and understanding is stated in Banks v Goodfellow (1870) LR 5 QB 549, 565 (Cockburn CJ):
    • The testator must:
      • understand the nature of the testamentary act and its effect,
      • understand the extent of the property being disposed, and
      • comprehend and appreciate the claims he or she ought to give effect.
  • ‘A matter that is often forgotten by parties in probate cases is that what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether she, or he, in fact, made the judgment about her, or his, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate’: Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275 [252]. See also Dickman v Holley; Estate of Simpson [2013] NSWSC 18 [159].
  • Modern medical knowledge can be taken into account as to what constitutes soundness of mind (eg alcoholism producing delusions): Timbury v Coffey (1941) 66 CLR 277.
    • Medical evidence is not conclusive, nor does it necessarily have primacy over non-medical evidence: Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 [65], [89]. See also Perrins v Holland [2009] EWHC 1945 (Ch).
    • Medical evidence may be directly or indirectly relevant (eg a practitioner may give evidence as to the effect of an underlying condition or of medication): Howroyd v Howroyd [2011] TASSC 73.
  • In a modern context, persons may not have detailed knowledge of the precise details of their investments or the income they produce (eg where they have financial advisors) — this should be distinguished from an issue of capacity: Kerr v Badran; Estate of Badran [2004] NSWSC 735; Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197.
  • Unsoundness of mind can be evidenced by delusions: Bull v Fulton (1942) 66 CLR 295.
    • A delusion is ‘a fixed an incorrigible false belief which the victim could not be reasoned out of’: Bull v Fulton (1942) 66 CLR 295, 339 (Williams J).
  • The existence of delusions does not become immaterial merely because the testator has, in the past, been reasoned out of them (or other delusions).
    • The assessment must be directed to the extent to which a delusion existing at the time of making the will affected the testator’s capacity: Seeley v Black [2005] NSWSC 68 [20].
  • Delusions may be due to either failure of memory or to paranoia but the cause of the delusion is immaterial: Bull v Fulton (1942) 66 CLR 295, 342 (Williams J).
  • Beliefs genuinely but erroneously held are distinguished from mere pretence to hold such views (eg to protect reputation); the former are delusions: Bull v Fulton (1942) 66 CLR 295 (Latham CJ).
  • Delusions are not fatal to the will provided it can be established on balance of probabilities that the delusion did not affect the disposition: Bull v Fulton (1942) 66 CLR 295 (Latham CJ).
  • Delusions in respect of an irrelevant matter to the disposition may provide evidence of mental capacity that should be evaluated as part of the general body of evidence.
    • If a testator was known to have delusions at a time reasonably proximate to the date of the will may create concerns: Seeley v Black [2005] NSWSC 68 [20].
  • Irrationality is not delusional if it has some connection with reality: Schultz v Bailey [2007] NSWCA 110.
  • Mistaken belief is not a delusion: Du Maurier v Wechsler [2001] NSWSC 4 [40], affd [2002] NSWCA 13.
  • Suicide shortly after execution is not evidence per se of unsoundness of mind at the time of the execution: Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 706 (Powell J); Fielder v Burgess [2014] SASC 98 [29].
  • Cognitive changes due to depression do not necessarily mean unsoundness of mind with regard to capacity to reason, even if they effect motivations: Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 709.
  • A mental disorder that detrimentally affects cognition cannot of itself provide a basis for saying that it was more probably than not that the testator lacked capacity: Gray v Hart [2012] NSWSC 1435 [345]; Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17.
  • Old age or physical health is not relevant unless it affects mental capacity: Bailey v Bailey (1924) 34 CLR 558.
    • Extreme age or feebleness may require greater vigilance of the court: Seeley v Black [2005] NSWSC 68 [20].
  • Eccentricity or unusual behaviour is not by itself evidence of unsoundness of mind: Estate of Griffith; Easter v Griffith (Unreported, New South Wales Court of Appeal, 7 June 1995); Perpetual Trustee v Baker [1999] NSWCA 244.
  • Harsh views of others (including children) or mean and capricious behaviour is not by itself evidence of unsoundness, although the court may need to decide whether such views are caused by mental illness: Broughton v Knight (1873) LR 3 P & D 64, 67–70.
  • Breakdown of family relationships and estrangement of the testator is not enough: Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17.
  • Residual doubt after examining evidence is not enough unless it is substantial enough to preclude a belief that the document is the will of the deceased who possessed sound mind, memory and understanding at the time of its execution: Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17 [219].
  • Generally, so long as the testator is of sound mind, memory and understanding at the time of giving instructions for the making of a will, the will is valid even if the testator is of unsound mind at the time of execution, provided they understand that what the testator is signing was drafted in accordance with their instructions: Parker v Felgate (1883) 8 PD 171.
    • This rule only applies in very clear cases where the testator’s instructions have been passed to the solicitor through an intermediary — it will not be applied if the will has been drafted on the instructions of a third party: Battan Singh v Amirchand [1948] AC 161, 169.
    • Evidence of instructions may or may not be relevant to determining sound mind, memory and understanding.
    • Where there may be an issue as to capacity, a solicitor should question the testator consistent with the test in Banks v Goodfellow (1870) LR 5 QB 549, 565 (Cockburn CJ) (as above): Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 [47].
    • A competent solicitor must take sufficient steps to satisfy themself that the testator has capacity — mere perfunctory steps are not enough: Pates v Craig; Estate of Cole (Unreported, Supreme Court of New South Wales, Santow J, 28 August 1995); Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 127 [306].
  • If the issue of testamentary capacity is raised, it must be proved even if opposition to the grant of probate is withdrawn; the judgment for probate operates in rem: Lock v Phillips [2014] WASC 92 [33].

Statutory wills for persons lacking capacity

  • The Supreme Court has power to make a will or revoke a will for a person who has lost testamentary capacity: Succession Act 2006 (NSW) pt 2.2 div 2.
  • The court may, on the application of any person, authorise the making or revocation of a will by a person who lacks testamentary capacity: Succession Act 2006 (NSW) s 18(1).
    • This includes an application to revoke a will in the lifetime of the testator if they lacked capacity when it was made or at some time after: Levy Estate; Application of Samuels [2010] NSWSC 1014.
    • The court acts in a protective or personal jurisdiction; the proceedings need not be held in open court and a non-disclosure order may be appropriate: AB v CB [2009] NSWSC 680. See also W v H [2014] NSWSC 1696; Re RB [2015] NSWSC 70.
  • Such an order may relate to the whole or part of the person’s estate: Succession Act 2006 (NSW) s 18(2).
  • The person must be alive when the order is made: Succession Act 2006 (NSW) s 18(3).
    • The person must also believe when the Registrar signs the will: Succession Act 2006 (NSW) s 23(3).
  • Leave is required to make an application: Succession Act 2006 (NSW) s 19(1).
  • The applicant must show:
    • reasons why the will should be made,
    • evidence of lack of capacity,
    • the size and nature of property of the proposed testator,
    • a draft will,
    • evidence of the wishes of the proposed testator,
    • terms of any prior wills,
    • the identity of any next of kin,
    • the likelihood of a claim under the Family Provision Act 1982,
    • the circumstances of any person whom the proposed testator might be expected to make provision, and
    • the charitable intentions of the proposed testator: Succession Act 2006 (NSW) s 19(2).
  • Succession Act 2006 (NSW):
    • s 20 — the court may grant leave and hear the application.
    • s 21 — the court may inform itself of any matter it sees fit.
    • s 21 — the court is not bound by rules of evidence.
    • s 25 — separate representation may be allowed to the proposed testator.
  • The court, having granted leave, must be satisfied on hearing the application that:
    • the proposed testator is (or is likely to be) incapable of making a will,
    • the proposed will is one the testator would have made or be reasonably likely to have made if they had retained capacity,
    • it is appropriate to make the order,
    • the applicant for leave is an appropriate person to make the application, and
    • adequate steps have been taken to allow representation by persons interested in the making of the order: Succession Act 2006 (NSW) s 22.
  • In cases where a person had capacity and loses it, the court is able to examine evidence of their relationships and previously expressed intentions to determine what they would likely have done.
    • This will be possible even where they have never made a will, but are likely to have done at some point in the future: Re Fenwick (2009) 76 NSWLR 22 [160]–[170].
    • The exercise of jurisdiction concerns ‘the actual, or reasonably likely, subjective intention of the person lacking capacity. It is the specific individual person who is, or is reasonably likely to be incapable of making a will, that must be considered. It is not an objective, or hypothetical, person who is considered. The jurisdiction of the Court is, so far as is possible, to make a statutory will in the terms in which a will would have been ade by that person if the person had testamentary capacity at the time of the hearing of the application’: Will of Jane [2011] NSWSC 624 [73].
    • Once the actual or reasonably likely intentions are established, the question is whether the testator would have acted upon them: Will of Jane [2011] NSWSC 624.
      • ‘If the proposed statutory will does no more than reflect one of a number of other possible dispositions [including intestacy], the requirements of s 22(b) will not be satisfied since it would not be “reasonably likely” to be a will [they] would have made had [they] had testamentary capacity’: Will of Janes [2011] NSWSC 624 [83]. See also Burns v Estate of Burns [2013] NSWSC 1550.
  • The court has made a will for a person in a coma to avoid the effect of intestacy rules which would have resulted in her estate passing to her abusive husband: Application by Kelso [2010] NSWSC 357.
  • Where a person never had testamentary capacity, it is not possible to make a subjective determination: the court can only make a determination based upon what a reasonable person in the circumstances would have done: Re Fenwick (2009) 76 NSWLR 22 [176]; Application of Sultana [2010] NSWSC 915; Sadler v Eggmolesse [2013] QSC 40.
  • If a person loses capacity before the age of majority but formed some rudimentary testamentary intentions, the court will be confronted with a subjective and objective test to decide whether the intentions would have been developed: Re Fenwick (2009) 76 NSWLR 22 [188].
  • A will made by order of the court must be in writing and signed by the Registrar with the seal of the court: Succession Act 2006 (NSW) s 23.
    • The dispensing power under s 8 cannot apply.
  • The will must be deposited with the Registrar and cannot be withdrawn except by order of the court or unless the testator regains capacity: Succession Act 2006 (NSW) s 24.

Knowledge and approval of the contents of the will

  • A will cannot be admitted to probate unless the testator knows and approves of the contents: Goods of Hunt (1875) LR 3 P & D 250.
  • Knowledge and approval is established by showing that the will was read to or by the testator.
    • Traditionally a will that had been read by or to a capable testator created an irrebuttable presumption of knowledge and approval: Guardhouse v Blackburn (1866) LR 1 P & D 109.
    • The presumption is now rebuttable: Astridge v Pepper [1970] 1 NSWR 542.
  • A professionally drafted will combined with the presumption of due execution may give rise to an inference of knowledge and approval: Public Trustee v Permanent Trustee Co Ltd [1999] NSWSC 722.
  • A will is not valid simply because the testator cannot read it — the testator must be demonstrated to have understood its contents prior to execution, which includes translation into another language or an explanation in a way the testator would understand: Paraskos v Paraskos [2002] WASC 109 [50].
  • Simply reading a will aloud is not conclusive by itself: Church v Mason [2013] NSWCA 481 [44].
  • Circumstances that may give rise to a suspicion that the testator did not know and approve of the includes include:
    • Where the person who prepared or instructed preparation of the will receives a benefit under it: Tobin v Ezekiel [2012] NSWCA 285; Church v Mason [2013] NSWCA 481.
    • Where the testator was enfeebled, blind or illiterate at the time of execution or the testator executes the will as a marksman (ie a person who cannot write, but makes their mark to execute the will) when he or she is not: Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 705.
  • The circumstances considered may extend to the preparation of the will and its intrinsic terms, as well as the circumstances surrounding preparation and execution, including whether there has been a significant change in testamentary bounty: Hyland as executor of the Estate of Luscombe v Healey [2013] NSWSC 1513 [25].
  • For how courts deal with matters of suspicion: Nock v Austin (1918) 25 CLR 519, 528 (Isaacs J).
  • Where a suspicion arises, the dispositions a will makes (or does not make) to persons having a natural claim should be considered along with the simplicity or complexity of the document.
    • If the will is simple and make expected provisions, evidence of knowledge and approval may be more readily accepted: Kay v Fisher [2009] WASC 193 [67]; Tobin v Ezekiel [2012] NSWCA 285 [43]–[54].
  • Proof of knowledge and approval where suspicion arises cannot be achieved by mere speculation — there must be proof backed by evidence and inferences that arise from proven facts: Hyland as executor of the Estate of Luscombe v Healey [2013] NSWSC 1513 [65].
  • Suspicion must not hide fraud or dishonesty — it must be a distinct charge: Nock v Austin (1918) 25 CLR 519, 528 (Isaac J).
  • The burden of establishing that the testator knew and approved the contents of the will can be a heavy one: Howroyd v Howroyd [2011] TASSC 73 [65].
    • Example: Where the will is drafted by the principal beneficiary without independent legal advice being sought/offered.

Undue influence

  • There are no presumptive relationships as in the case of inter vivos documents — undue influence must be proved in the case of a will: Hindson v Weatherill (1854) 43 ER 886.
    • Undue influence and presumptive relationships will apply to a contract to make a will or not revoke a will: White v Wills [2014] NSWSC 1160.
  • If a solicitor or other person prepares a will and receives a benefit under it, there is a suspicion as to the knowlede and approval of the testator: Wintle v Nye [1959] 1 WLR 284; Re Herbert Brothers (1990) 101 FLR 279.
  • Undue influence is more than persuasion — it must overcome the testator’s volition: Hall v Hall (1868) LR 1 P & D 481.
  • The essence is coercion — the testator must do that which they do not desire to do: Wingrove v Wingrove (1886) 11 PD 81; Trustee for the Salvation Army (NSW) v Becker [2007] NSWCA 136.
    • It is not undue influence if the testator voluntarily succumbs to improper or immoral influences: Wingrove v Wingrove (1886) 11 PD 81.
    • It must be proved that coercion has in fact happened and not that a person is merely in the position to coerce the testator: Wingrove v Wingrove (1886) 11 PD 81.
  • Undue influence can be proved from circumstantial evidence.
  • The evidence must support the hypothesis that the will was a result of undue influence to the exclusion of all other hypotheses suggesting that the will was a product of a free mind: Winter v Crichton (1991) 23 NSWLR 116; Boyse v Rossborough (1857) 10 ER 299; Craig v Lamourex [1920] AC 349; Tobin v Ezekiel; Estate of Ezekiel [2011] NSWSC 81 [43].
    • This approach has been criticised for making proof of undue influence too difficult: Nichoson v Knaggs [2009] VSC 64.
    • It has been stated that no more than proof on the balance of probabilities is required in favour of the hypothesis of undue influence: Brown v Guss [2014] VSC 251 [393].

Fraud

  • Fraud can comprise:
    • Wilful false statements to the testator to induce a gift or prevent a gift to persons the natural object of the testator’s bounty: Barro v Greenough (1796) 30 ER 943.
    • Suppression of material facts to induce a gift or prevent a gift to persons the natural object of the testator’s bounty: Bulkley v Wilford (1834) 5 ER 888.
    • Failure to advise the testator of the effect of a testamentary act: Fulton v Andrew (1875) LR 7 HL 448.
    • Compelling a person to execute a will by threats or actual force: Betts v Doughty (1879) 5 PD 26.
  • In the case of fraud there is either knowledge without approval or knowledge and approval based on a false premise of fact or law.
  • ‘Fraud misleads a testator whereas undue influence coerces him’: Skinner v Frappell [2008] NSWCA 296 [79].
  • Fraud cannot be established by inference from facts unless the inference is so compelling as to exclude any hypothesis consistent with a free mind: Skinner v Frappell [2008] NSWWCA 296.

Proof

  • The onus of proof lies on the person propounding the will.
  • The proponent need only establish a prima facie case that the will is that of a free and capable testator — this may be done by reliance upon a presumption.
  • Once a prima facie case has been established, the onus of proof lies on the party impeaching the will to show that it ought not be admitted to probate.
  • See the 12 propositions of Isaacs J in Bailey v Bailey (1924) 34 CLR 558, 570–572.
  • ‘Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator’s competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given’: Boreham v Prince Henry Hospital (1955) 29 ALJ 179, 180.

Intention — animus testandi

  • The testator must intend that the document executed by their will.
  • Idle gossip (if written) as to what will occur after death is insufficient: Estate of Knibbs [1962] 2 All ER 829.
  • A will drafted in jest or as a demonstration lacks the necessary intent: Nichols v Nichols (1814) 161 ER 1113.
  • A document that is prima facie a deed will require clear evidence to show it was executed with testamentary intent.
    • The mere use of the words ‘I give’ in a properly executed document that has no title, no appointment of executor, no relevant legalese and no reference to death to make it operative is insufficient: King’s Proctor v Danes (1830) 162 ER 1136.
  • Words of gift such as a bequeath will not turn a document into a will if the true intention was to be an inter vivos assignment: Gamer v Whip [2012] QSC 209.

Mistake and rectification

  • At common law:
    • A court cannot add words to a will.
    • A court can delete words from a will that the testator does not know and approve of: Re Morris [1971] P 62.
    • A court will omit words if their inclusion would lead to a gift not known and approved of by the testator: Re Reynette-James [1976] 1 WLR 161.
    • If words are sought to be deleted, the onus of proof rests on the person seeking omission to show that the testator did not know or approve of those words: Re Bryden [1975] Qd R 210.
    • A court cannot delete words if it would alter the meaning an effect of what remains: Osborne v Smith (1960) 105 CLR 153, 154 (Kitto J).
    • If words are left out, a court cannot omit further words so as to approximate the testator’s intention.
    • The court cannot rectify a will where there is a mistake as to the legal effect of the words used: Re Horrocks; Taylor v Kershaw [1939] P 198.
  • These limitations gave rise to legislative provisions for rectification: Succession Act 2006 (NSW) s 27.
    • Rectification can only be made in respect of a valid will — if the testator lacks soundness of mind or does not know and approve of the contents of the will, the document cannot be rectified: Estate of Barrett [2013] SASC 150.
  • The court may rectify a will that fails to carry out the testator’s intentions due to a clerical error or because it does not give effect to their instructions: Succession Act 2006 (NSW) s 27.
    • It cannot apply by implication to a will drafted by the testator personally: Vescio v Bannister [2010] NSWSC 1274.
    • Clerical error is interpreted broadly, covering errors in recording the intended words, as well as situations where the person drafting the will does not appreciate the significant of effect of the introduction (or deletion) of a particular provision: Wordingham v Royal Exchange Trust Co Ltd [1992] Ch 412; Re Segelman [1996] Ch 171; Marley v Rawlings [2011] 1 WLR 2146; Re Will of McCowen [2013] NSWSC 1000.
    • A causal connection is required between the clerical error and the failure of the will to give effect to the testator’s intention: Succession Act 2006 (NSW) s 27 (use of ‘because’).
      • The rectification power will apply as long as the clerical error is the principal reason for why the will does not carry out the testator’s intentions: Re Will of McCowen [2013] NSWSC 1000 [20].
    • The court must be satisfied that the will failed to carry out the testator’s intentions — it cannot act upon what it thinks the testator would have probably done: Trimmer v Lax (Unreported, Supreme Court of New South Wales, Hodgson J, 9 May 1997); Lawler v Herd [2010] QSC 281; ANZ Trustees Ltd v Hamlet [2010] VSC 207.
    • Rectification cannot be used to correct unforeseen circumstances that have arisen since the making of the will: Estate of Spinks; Mortensen v State of NSW (Unreported, New South Wales Court of Appeal, 12 December 1991).
    • Rectification cannot be used where the testator fails to foresee the extent of the operation of a particular intended clause in a will: Estate of Nolan [2004] NSWSC 1191. Cf Fawcett v Crompton [2010] NSWSC 219.
    • A will can be rectified if the name of a beneficiary is incorrect and the identity of the intended beneficiary can be ascertained to the satisfaction of the court: Tantau v MacFarlane [2010] NSWSC 224.
    • Rectification is not confined to mistakes as to the wording of the will, and has been applied where spouses have mistakenly executed each other’s will (due to being almost identical): Re Gillespie (Unreported, Supreme Court of New South Wales, Powell J, 25 October 1991). Cf Re Segelman; Pengelly v Pengelly [2008] Ch 275. Cf Re Estate of Johnson [2014] NSWSC 512.
      • The proper approach appears to be exercising the dispensing power rather than the rectification power: Estate of Daly [2012] NSWSC 555 [25]–[27] (White J).
        • However, it is possible that either could be used: Re Estate of Johnson [2014] NSWSC 512 [19] (Lindsay J).
    • Rectification requires convincing proof equivalent to that required for the rectification of inter vivos deeds: Estate of Haygarth (Unreported, Supreme Court of New South Wales, Hodgson J, 7 October 1994); Estate of Wilkinson (Unreported, Supreme Court of New South Wales, Santow J, 18 May 1995).
    • It is possible to rectify a will to remove doubt, even if the will, properly construed, would carry out the testator’s intention: Rawack v Spicer [2002] NSWSC 849 [25]; Tantau v MacFarlane [2010] NSWSC 224.
      • This should not be the ordinary outcome, and is a matter for the discretion of the judge: Re Morgan [2015] NSWSC 194 [5]; Re Cobcroft [2015] NSWSC 346 [48].
        • It has been held that the section requires the will to be properly construed first, and does not permit the court to avoid construing the will altogether: ANZ Trustees Ltd v Hamlet [2010] VSC 207.
    • An application to rectify a will must be made within 18 months of the testator’s death, unless leave of the court is given on sufficient grounds: Succession Act 2006 (NSW) s 27(2)–(3).
    • Protection is given to an executor who distributes before a rectification order is made, provided the distribution is made more than 6 months after death and without knowledge of any application for rectification or claim under the Family Provision Act 1989: Succession Act 2006 (NSW) s 28.