Kuhz v Trainor

The applicants in this case, Kuhz and another, sought to rectify the will of the deceased, June Constance Hollett, by establishing a discretionary trust. The application was supported by the third respondent but opposed by the first respondent. The dispute was heard by the Queensland Supreme Court. The applicants argued that the will, dated 21 August 2012, did not accurately reflect the deceased's intentions due to a clerical error or because it did not follow the deceased's instructions. The applicants sought to delete certain words from the will to create a discretionary trust for the beneficiaries named in the will.

The legal issues before the court were whether the will was flawed due to a clerical error or because it did not conform to the deceased's instructions, and if so, whether the court should exercise its discretion to grant the orders sought. The court examined the evidence and submissions from both parties to determine if the will could be rectified under section 33 of the Succession Act 1981 (Qld). The court found that the will did not accurately reflect the deceased's intentions and that the clerical error and instructions given by the deceased warranted rectification.

In light of the findings, the court ordered the rectification of the will as sought by the applicants. The will was to be amended by deleting specific words and inserting new words to establish a discretionary trust for the named beneficiaries. The court also ordered that unless any party filed submissions seeking a different order for costs within 21 days, the applicants and respondents would have their costs paid from the estate on an indemnity basis.