Keys v Australian Executor Trustees Ltd

The Full Court of the Supreme Court of South Australia considered an appeal concerning the rectification of a will. The appellant, Ms. Keys, sought to rectify the will of the deceased, Mr. Keys, to reflect his true testamentary intentions. The respondent, Australian Executor Trustees Ltd, was the executor of the deceased's estate.

The central legal issue before the Court was whether the will failed to give effect to the deceased's testamentary intentions due to a mistake, as contemplated by section 25 of the *Wills Act 1936* (SA). Specifically, the Court had to determine if the evidence established that the deceased intended to make a different disposition of his property than that which was expressed in the will, and if so, whether that failure was due to a mistake in the recording of his intentions.

The Court analysed the evidence presented, including the deceased's instructions to his solicitor and the solicitor's notes. It applied the principles established in cases concerning the rectification of wills, emphasising that rectification is an exceptional remedy requiring clear and convincing proof of a mistake. The Court found that the evidence did not demonstrate with the necessary certainty that the will, as executed, failed to give effect to the deceased's testamentary intentions due to a mistake in its recording. The deceased had a clear understanding of the will's contents and executed it with that understanding.

Consequently, the appeal was dismissed, and the primary judge's decision refusing rectification was upheld.