Fitzgerald v Rowley

In the matter of Fitzgerald v Rowley, the applicants, two daughters of the deceased, sought rectification of their father’s will. The deceased, William Francis Gim Fitzgerald, had intended to create a trust with his wife as the beneficiary and his daughters as trustees. Upon the death of his wife, the deceased intended the remaining trust fund to be distributed to the applicants. The applicants argued that the literal effect of the will did not reflect this intention and sought to have the will rectified. The case was heard in the Queensland Supreme Court.

The central legal issues in this case were whether the will contained a mistake or omission that did not reflect the deceased’s true intentions and whether the court had the power to rectify the will under section 33 of the Succession Act 1981 (Qld). The applicants argued that the will did not reflect the deceased’s intentions and that the court should rectify the will to reflect his true intentions. The respondents argued that the will accurately reflected the deceased’s intentions and that the court should not rectify the will.

The court found that the will did not reflect the deceased’s true intentions and that the court had the power to rectify the will under section 33 of the Succession Act 1981 (Qld). The court found that all relevant parties believed the trust deed and will gave effect to the deceased’s intention that the remaining trust fund be distributed to the applicants upon the death of the deceased’s wife. The court found that the literal effect of the will did not provide for this distribution and that the will contained a mistake that did not reflect the deceased’s true intentions. The court granted the applicants’ application for rectification of the will and ordered that the will be rectified by deleting clause 4 and inserting a new clause that gave effect to the deceased’s true intentions. The court also extended the time for making an application for an order to rectify the will. The parties were to be heard as to costs.