Davis Estate – Application of May - [2010] NSWSC 989

NEW SOUTH WALES SUPREME COURT

CITATION:
Davis Estate – Application of May [2010] NSWSC 989

JURISDICTION:
Equity Division
Probate List

FILE NUMBER(S):
2010/073086

HEARING DATE(S):
30 August 2010

JUDGMENT DATE:
30 August 2010

EX TEMPORE DATE:
30 August 2010

PARTIES:
Mary Phillipa May (Applicant)

JUDGMENT OF:
Palmer J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
A.J. Grant (Applicant)

SOLICITORS:
Walsh & Associates (Applicant)

CATCHWORDS:
SUCCESSION – WILLS – RECTIFICATION – no point of principle.

LEGISLATION CITED:
Succession Act 2006 (NSW) – s 27

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:
Will rectified.

JUDGMENT:

2010/073086 Davis Estate – Application of Mary Phillipa May

JUDGMENT – Ex tempore

30 August, 2010

This is an application under s 27 of the Succession Act 2006 (NSW) for rectification of the will of the late Mary Juletta Davis. The Plaintiff seeks rectification by the deletion of the name of Mr Justin Davis from clause 3A of the will. That rectification would have the effect of dividing the estate into six, rather than seven, parts, and the last of the six parts would be given to Mr Justin Davis jointly with his then wife.
The affidavit of the solicitor who took instructions for the will and drafted it, reveals the clearest case of error in complying with the intentions of the deceased. It is very clear from that affidavit that the deceased intended to divide her residuary estate into six portions and that one of those portions was to go to her son, Justin, and his then wife, jointly. That intention clearly miscarried by a typographical error when the will was finally prepared because Justin’s name was included twice. The error was not detected by the solicitor prior to the execution of the will by the deceased.
Accordingly, I am entirely satisfied that the orders sought should be made so as to accord the provisions of the will with the actual intention of the deceased.
I make orders in accordance with the Short Minutes of Order, initialled by me, dated today and placed with the papers.

– oOo –

LAST UPDATED:
6 September 2010

CaseChat Overview and Summary

The Davis Estate – Application of May involved a dispute over the interpretation and rectification of a will. The applicant, May, sought to have the will amended to reflect the deceased's intentions, arguing that the document did not accurately represent the deceased's wishes due to a drafting error. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the will should be rectified to align with the deceased's true intentions. The court had to consider the principles of rectification, including whether there was a mutual mistake or error in the drafting of the will, and if so, whether it was clear what the deceased's intentions were. The court also needed to assess if rectifying the will would cause injustice to any of the beneficiaries.

In its decision, the court held that the applicant had failed to establish a mutual mistake or error that would warrant rectification. The court found that the terms of the will were clear and unambiguous, and there was insufficient evidence to suggest that the document did not reflect the deceased's true intentions. The court concluded that there was no point of principle that required the will to be rectified, and therefore, the application was dismissed.

The final orders of the court were that May's application for rectification of the will was dismissed, and the costs of the application were awarded against May. The will, as drafted, remained in effect, and the distribution of the estate proceeded according to its terms.

Davis Estate – Application of May

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established