In the Estate of REA COSTELLO (DECEASED)

In the matter of the estate of Rea Costello, who passed away on 25 February 2013, the court was called upon to address an application for the rectification of her will. The primary issue was the potential invalidity of the clause appointing her solicitor, Jo-Anne Noreen Milen, as executor due to uncertainty. The will, dated 24 October 2012, named Ms. Milen as the sole executor but also included a provision for an alternate executor in the event Ms. Milen was unable to act, which the court deemed uncertain and therefore void.

The court found that the clause appointing an alternate executor was void due to uncertainty, as established in previous cases. The testator's intent was clear that Ms. Milen should be the executor, but the lack of specificity regarding the circumstances under which the alternate appointment would take effect rendered the clause unenforceable. The court noted that while Ms. Milen was willing and able to act, rectifying the clause to remove the alternate appointment was necessary to effectuate the testator's clear intent. The court's decision followed a similar rectification made in the Estate of Jacques Johan Veldhuis, where the clause was amended to appoint the named solicitor solely as executor.

As a result, the court allowed the application for rectification, amending the clause in Ms. Costello's will to appoint Jo-Anne Noreen Milen as the sole executor and trustee. The court also granted probate to Ms. Milen and ordered that the costs of the application be borne by her firm, Jo-Anne N Milen & Associates.