NSW Trustee & Guardian, Application of

[2010] NSWSC 778

CITATION:	NSW Trustee & Guardian, Application of [2010] NSWSC 778
HEARING DATE(S):	12 July 2010
JUDGMENT DATE :	12 July 2010
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	12 July 2010
DECISION:	Application granted.
CATCHWORDS:	PROBATE – Rectification of will – whether the rectification sought will make testator’s intention clearer.
LEGISLATION CITED:	Wills, Probate and Administration Act 1898 (NSW) – s 29A
CATEGORY:	Principal judgment
CASES CITED:	Application of Spooner , Re [1995] NSWSC 28 July 1995 Estate of Cross [1996] NSWSC 9 May 1996
PARTIES:	NSW Trustee & Guardian (Applicant)
FILE NUMBER(S):	SC 2010/137135
COUNSEL:	Ms V. Hartstein (Applicant)
SOLICITORS:	A. Lentini, NSW Trustee & Guardian (Applicant)

2010/137135 Application by New South Wales Trustee & Guardian

JUDGMENT – Ex tempore

12 July , 2010

1 This is an application for rectification of a will. Because the deceased died before 1 March 2008, the application is made pursuant to s 29A(1) of the Wills, Probate and Administration Act 1898 (NSW). The application is made outside the prescribed period under s 29A(2). However, sufficient cause has been shown for the failure to make the application within time, so that leave under s 29A(3) is granted.

2 The deceased's will, dated 12 April 2005, left part of his residuary estate to:

“Mowll Anglican Retirement Village (part of MUIOOF Health Fund Organisation) of 284 Castle Hill Road, Castle Hill, if it still exists when I die.”

3 The evidence shows that the Mowll Retirement Village at Castle Hill was in existence at the time of the will and is still in existence. However, it is not now and does not appear ever to have been, part of MUIOOF Health Fund Organisation. The executor is, therefore, in doubt as to who may give a valid discharge for the gift under the will and brings these proceedings for rectification, by deletion of the words “(part of MUIOOF Health Fund Organisation)”. Notice of the application has been given to the other residuary beneficiaries, none of whom appears to oppose the application.

4 The evidence of the solicitor who drafted the will in accordance with the deceased's instructions makes it clear that the deceased wished, by this gift, to benefit the Mowll Retirement Village because it helped elderly people. He thought that the village was owned by Manchester Unity, but it was not that commercial enterprise itself which he wished to benefit.

5 I am entirely satisfied that the words in brackets after the reference to “Mowll Retirement Village” were inserted as a means of identifying more clearly the recipient of the gift as Mowll Retirement Village and were not intended to attach a condition to the gift, that is, that the village be owned by MUIOOF Health Fund at the time of the deceased's death. The insertion of the words in brackets was, therefore, due to a mistaken belief by the deceased as to a matter which was not of consequence in identifying the intended beneficiary. For the removal of doubt in administration of the estate, the will should be rectified by deleting the mistaken words of identification.

6 The effect of the rectification order will be to leave the beneficiary as the deceased originally intended and simply to make that intention clearer. An order made for that purpose is properly within the scope of s 29A Wills, Probate and Administration Act: see, for example, Re Application of Spooner [1995] NSWSC 28 July 1995 per Hodgson J, and The Estate of Cross [1996] NSWSC 9 May 1996 per McLelland CJ in Eq. Accordingly, there will be orders in terms of paragraphs 1, 2 and 3 of the Summons.

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