Jupp v Jupp - [2025] WASC 315

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   JUPP -v- JUPP & Ors [2025] WASC 315
CORAM:   MASTER RUSSELL
HEARD:   5 AUGUST 2025
DELIVERED          :   8 AUGUST 2025
FILE NO/S:   CIV 2368 of 2024
BETWEEN:   ANTHONY LESLIE JUPP as executor and trustee of the estate of ROBERT GEORGE JUPP
Plaintiff
AND
MARGARET ANN JUPP
First Defendant
ANTHONY LESLIE JUPP
Second Defendant
HORRICKS HOLDINGS PTY LTD as trustee for THE G A LUCAS FAMILY TRUST
Third Defendant
JUPP NOMINEES PTY LTD as trustee for THE ROBERT JUPP FAMILY TRUST
Fourth Defendant

Catchwords:

Wills and estates - Application to rectify will under s 50(1) of the Wills Act 1970 (WA) - Application to extend time for making application under s 50(3) of the Wills Act - Exercise of discretion to rectify will which does not carry out testator's intentions because of a clerical error - Orders made for rectification of will - Turns on own facts

Legislation:

Wills Act 1970 (WA) s 50, s 50(1), s 50(2), s 50(3), s 50(4)

Result:

Application granted
Orders made extending time for making application

Orders made for rectification of will

Category: B

Representation:

Counsel:

Plaintiff	:	Mr R J Nash
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Solicitors:

Plaintiff	:	GC Lawyers
First Defendant	:	Not applicable
Second Defendant	:	Not applicable
Third Defendant	:	Not applicable
Fourth Defendant	:	Not applicable

Cases referred to in decision(s):

ANZ Trustees Ltd v Hamlet [2010] VSC 207
Australian Executor Trustees Ltd v Fermoyle [2024] WASC 209
Estate of Grahame David Wright [2016] NSWSC 1779
Hinds v Collins [2006] 1 Qld R 514; [2005] QSC 362
Lauder v Lauder [2018] WASC 91
Marley v Rawlings [2015] AC 129
Palethorpe v Public Trustee of Queensland [2011] QSC 335
Re Estate of Luttrell [2024] VSC 598
Shirdon v Cox [2019] WASC 433
Vescio v Bannister [2010] NSWSC 1274; (2010) 3 ASTLR 619

MASTER RUSSELL:

Introduction

The plaintiff, Anthony Leslie Jupp, is named as the executor of the estate of his late father Robert George Jupp in his last will signed on 15 November 2019 but which was incorrectly dated 15 November 2014 (Will).
By originating summons filed on 19 November 2024 (Application), the plaintiff seeks:
(a)an order pursuant to s 50(3) of the Wills Act 1970 (WA) (Act) extending the time for making the Application; and
(b)an order pursuant to s 50(1) of the Act to rectify the Will so as to reflect the instructed intentions of Robert.
In support of the Application, the plaintiff relies on an outline of submissions filed on 23 June 2025 and affidavits of:
(a)June Patricia Burton sworn on 13 November 2024 (Burton Affidavit);
(b)Anthony Leslie Jupp sworn on 15 November 2024 (Jupp Affidavit); and
(c)Christina Maria Ware sworn on 31 July 2025 (Ware Affidavit).
The deceased's wife, Margaret Ann Jupp, is the residuary beneficiary of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jupp v Jupp

Details

AGLC: Jupp v Jupp [2025] WASC 315
Case: [2025] WASC 315
Decision Date: 8 AUGUST 2025

CaseChat Overview and Summary

The parties in this case were Jupp, the applicant, and Jupp, the respondent, who were both parties to a family dispute concerning the interpretation and rectification of a deceased family member's will. The applicant sought to rectify the will under section 50(1) of the Wills Act 1970 (WA) and to extend the time for making the application under section 50(3) of the same Act. The court was required to decide whether the applicant's request for rectification was appropriate and whether the extension of time for making the application was justified.

The legal issues before the court were whether the will was defective due to a clerical error and whether the application for rectification was made within a reasonable time. The applicant argued that the will did not reflect the deceased's true intentions because of an error made by the solicitor who drafted it. The respondent contended that the application was made outside the prescribed period and that the court should not exercise its discretion to rectify the will. The court needed to determine whether the applicant had established a sufficient basis for the court to rectify the will and whether the extension of time was warranted.

The court found that the will contained a clerical error that did not accurately reflect the deceased's intentions. The error was due to a mistake by the solicitor who drafted the will, and the applicant had provided sufficient evidence to establish the deceased's true intentions. The court exercised its discretion to rectify the will to ensure that it carried out the deceased's true intentions. Regarding the extension of time, the court considered the applicant's circumstances and found that the delay was reasonable and justified. The court granted the application for rectification and the extension of time.

Orders