Hinds v Collins

The case of Hinds v Collins concerned the construction and effect of a testamentary disposition within the context of succession law. The applicant, Hinds, sought to rectify the will of the deceased, Frederick Edward Lowin, before it was admitted to probate. The deceased had left the applicant as executor of his estate. The primary issue was whether section 31 of the Succession Act 1981 (Qld) permitted the rectification of a will prior to its admission to probate, particularly regarding the omission of a bequest for the "balance of any monies" to be left to Gisela Helene McMillan. The deceased had provided written instructions to his solicitor that included a specific bequest to Ms McMillan, but the executed will did not include this provision. Instead, the will left the "balance of any monies" to the next of kin, the three siblings of the testator, including the respondent, Ms Collins.

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.