Dillon v Henderson

In the case of Dillon v Henderson, the dispute arose from the interpretation and potential rectification of a will made by the deceased, who had assets in both Malaysia and Australia. The primary issue was whether the statutory power of rectification could be exercised under section 33(1) of the Succession Act 1981 (Qld) to correct the Australian will made by the deceased to reflect his true intentions. The deceased had executed a will in Malaysia but, upon returning to Australia for medical treatment, wished to create a new will specifically for his Australian assets. The Australian will contained a general revocation clause that inadvertently revoked the Malaysian will, contrary to the deceased's intention. The court was tasked with determining whether the Australian will could be rectified to give effect to the deceased's instructions to himself.

The legal issues before the court included whether the Australian will could be rectified to reflect the deceased's true intentions and whether the statutory provision for rectification applied in this context. The court examined the evidence of the deceased's intention, including his actions and statements indicating his desire to keep the Malaysian will intact while creating a separate will for his Australian assets. The deceased's actions in completing a will form and seeking witness attestation indicated his intention to personally handle the creation of the Australian will. The court had to consider whether the deceased's failure to modify the standard revocation clause constituted a clerical error or a deviation from his instructions to himself. The court also needed to assess if the statutory power of rectification was applicable to a will that the deceased had personally completed, despite the lack of ambiguity in the revocation clause.

The court found that the deceased's unequivocal intention to make a will disposing of his Australian assets without affecting the Malaysian will was not reflected in the Australian will. The deceased's completion of a printed will form, while not composing and writing the will from scratch, still constituted an effort to follow his instructions to himself. The general revocation clause in the Australian will did not align with the deceased's intention, leading to a misalignment between his instructions and the executed will. The court held that this misalignment qualified as a clerical error or a deviation from the deceased's instructions, justifying the exercise of the statutory power of rectification under section 33(1) of the Succession Act 1981 (Qld). Consequently, the court granted the order for rectification, ensuring that the Australian will would be amended to reflect the deceased's true intentions regarding his Australian assets.