Hinds v Collins

[2005] QSC 362

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 33

Rawack v Spicer [2002] NSWSC 849, distinguished
Trimmer v Lax (unreported, Supreme Court of New South Wales, Hodgson J, 9 May 1997), distinguished

COUNSEL:

D J Morgan for the applicant
C F O’Meara for the respondent

SOLICITORS:

Gill & Lane for the applicant
Paul Pattison Solicitors for the respondent

1. 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…