SUPREME COURT OF QUEENSLAND
CITATION:
Hinds v Collins [2005] QSC 362
PARTIES:
FRANCIS HARRY HINDS (as executor of the estate of FREDERICK EDWARD LOWIN)
(applicant)
v
IDA ELIZABETH RUTH COLLINS
(respondent)FILE NO/S:
BS 9406 of 2005
DIVISION:
Trial Division
PROCEEDING:
Application for rectification of will
ORIGINATING COURT: Brisbane DELIVERED ON:
6 December 2005
DELIVERED AT:
Brisbane
HEARING DATE:
22 November 2005
JUDGE:
McMurdo J
ORDER:
1. In the event that the will of the late Frederick Edward Lowin dated 11 March 2005 is admitted to probate, the probate copy of the will be rectified by adding a clause in the following terms:
“5(a) The balance of any monies, after the above bequests have been made, is to be bequested to Gisela Helene McMillan of 53 Sarah Street, Deagon”
2. The respondent have her costs on an indemnity basis paid from the estate
CATCHWORDS:
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CHANGING, TRANSPOSING, OMITTING OR SUPPLYING WORDS – CHANGING WORDS – where the testator died leaving the applicant as executor – where the applicant seeks rectification of the will prior to admission to probate – whether s 31 of the Succession Act 1981 (Qld) allows for rectification of a will prior to admission to probate – where the solicitor prepared will on the written instructions of the testator – where the solicitor read through the instructions with the testator – where the solicitor subsequently read through the draft will with the testator prior to execution – where the written instructions provided that the “balance of any monies” were to be left to Ms McMillan – where the executed will did not make provision for who was to take the “balance of any monies” – where under the will, the balance monies would be paid to the next of kin, namely the three siblings of the testator – where one the testator’s siblings, Ms Collins, resisted the application for rectification – whether the testator intended to insert the words leaving the “balance of any monies” to Ms McMillan
Succession Act 1981 (Qld), s 31
Succession Amendment Bill 2005 (Qld), cl 33Rawack v Spicer [2002] NSWSC 849, distinguished
Trimmer v Lax (unreported, Supreme Court of New South Wales, Hodgson J, 9 May 1997), distinguishedCOUNSEL:
D J Morgan for the applicant
C F O’Meara for the respondentSOLICITORS:
Gill & Lane for the applicant
Paul Pattison Solicitors for the respondent
J:McMURDO This is an application for rectification of a will. The testator, Mr F E Lowin, died on 7 May this year, aged 88 years. The will is dated 11 March 2005 and names the applicant as executor. He intends to prove the will but now he applies for an order that it be rectified by adding certain words which, he says, were words which Mr Lowin intended to include. His application is opposed by the testator’s sister, Mrs Collins, who would receive about $15,000 if the will remains in its present…
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- AGLC
- Hinds v Collins [2005] QSC 362
- Case
- [2005] QSC 362
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the omission of the bequest to Ms McMillan was due to an error or oversight in the drafting of the will, or if the testator had intentionally omitted it. The court examined the circumstances under which the will was drafted and executed, noting that the solicitor had read through the written instructions with the testator and subsequently read through the draft will prior to execution. The court considered the testator's clear intention as expressed in the written instructions and the solicitor's role in the preparation of the will. Given these factors, the court concluded that the omission was likely an inadvertent error, and rectification was warranted to align the executed will with the testator's intentions.
In light of the above, the court ordered that if the will was admitted to probate, the probate copy of the will should be rectified by adding the omitted clause regarding the bequest to Ms McMillan. Additionally, the court ordered that the respondent, Ms Collins, pay the applicant's costs on an indemnity basis from the estate. This decision underscores the importance of accurately reflecting the testator's intentions in the execution of a will, and the court's willingness to rectify errors where it is clear that the testator's true wishes have not been properly executed.
Orders
Orders of the court
1. In the event that the will of the late Frederick Edward Lowin dated 11 March 2005 is admitted to probate, the probate copy of the will be rectified by adding a clause in the following terms:
“5(a) The balance of any monies, after the above bequests have been made, is to be bequested to Gisela Helene McMillan of 53 Sarah Street, Deagon”
2. The respondent have her costs on an indemnity basis paid from the estate
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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