Re Estate of Luttrell - [2024] VSC 598

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2023 03115

IN THE MATTER of the Will and Estate of ELIZABETH ANN LUTTRELL (deceased)

BETWEEN:
MARK TASMAN LUTTRELL and SHANNON LEE TOLEMAN	Plaintiffs
-and-
DEBRA KAREN CARRACHER	Respondent

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JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2024
DATE OF JUDGMENT:	26 September 2024
CASE MAY BE CITED AS:	Re Estate of Luttrell
MEDIUM NEUTRAL CITATION:	[2024] VSC 598

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WILLS AND ESTATES – Rectification - Wills Act 1997 (Vic), s 31(1) – Whether the will carries out intentions of the testator – Whether a ‘clerical error’ – Whether the will does not give effect to the testator’s instructions - Meaning of ‘clerical error’ - Re Estate of Prevost [2004] VSC 537 - Marley v Rawlings [2015] AC 129.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	J W McCoy	A.B. Natoli Lawyers
For the Respondent	W F Gillies	Wilckens Roche Lawyers

TABLE OF CONTENTS

The will of Elizabeth Luttrell.......................................................................................................... 1

Section 39 of the Wills Act does not apply................................................................................. 3

The statutory power to rectify a will.............................................................................................. 4

The concept of ‘clerical error’...................................................................................................... 5
Principles governing the exercise of the s 31(1) power........................................................... 7
The requirement that the Court be satisfied that the will failed to carry out the testator’s intention.................................................................................................................... 7

The evidence relevant to rectification............................................................................................ 9

The parties’ contentions on rectification..................................................................................... 14

Consideration.................................................................................................................................... 16

Does the Will reflect Elizabeth’s intentions?........................................................................... 17
Mr Natoli’s evidence as to Elizabeth’s intention.......................................................... 17
The admissibility of the Handwritten Note and the effect of the note...................... 19

Was the reference to clause 4.2(a) rather than clause 4.2(b) a clerical error?..................... 22
Did the Will give effect to Elizabeth’s instructions?.............................................................. 23
Does the proposed rectification reflect Elizabeth’s intentions?........................................... 24
Conclusion – the Will should be rectified............................................................................... 24

Costs.................................................................................................................................................... 24

Principles on costs in the context of rectification of a will.................................................... 25
The parties’ submissions on costs............................................................................................. 26

HER HONOUR:

The will of Elizabeth Luttrell

This is an application for the rectification of the will of Elizabeth Ann Luttrell, who died on 4 August 2022.[1] Elizabeth’s husband, Tasman Percy Luttrell, passed away 28 days later.[2] The plaintiffs in this proceeding are Elizabeth’s step-son, Mark Luttrell (Tasman’s son) and Elizabeth’s niece, Shannon Toleman. Tasman’s daughter, Debra Carracher, was joined as a respondent to the proceeding.[3]
[1]Affidavit of John Francis Natoli sworn on 10 July 2023 (Natoli Affidavit), Exhibit JFN-1, 16.
[2]Natoli Affidavit, Exhibit JFN-1, 17.
[3]Orders of Keith JR made 4 December 2023, Order 1.

In 1996, Elizabeth instructed her solicitor, Mr John Natoli, in the preparation of her will. On 20 March 1996, Elizabeth executed her Will. The Will appointed Tasman as an executor of her will, along with Mark Luttrell and Ms Toleman (the Trustees).

When Elizabeth died, she and Tasman resided at a Property in East Doncaster in which she was a tenant in common in equal shares with her husband.

Clause 3 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.

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Details

Case: [2024] VSC 598
Decision Date: 26 September 2024

CaseChat Overview and Summary

The case of Re Estate of Luttrell involved a dispute over the validity and interpretation of a will. The matter was heard in the Supreme Court of Victoria, where the court was tasked with determining whether the will accurately reflected the intentions of the deceased, Mrs Luttrell. The primary issue was whether a clerical error existed that prevented the will from giving effect to the testator’s instructions.

The court needed to decide whether the provisions in the will were a result of a clerical error under section 31(1) of the Wills Act 1997 (Vic). The will's wording appeared to conflict with the likely intentions of Mrs Luttrell, raising questions about whether the error was a simple clerical one or if it significantly altered the meaning of the will. The court considered relevant case law, including Re Estate of Prevost and Marley v Rawlings, to understand the scope of what constitutes a clerical error. Ultimately, the court was required to determine whether the error was minor enough to warrant rectification to ensure the will expressed Mrs Luttrell's true intentions.

After thorough consideration, the court concluded that the will contained a clerical error which did not align with Mrs Luttrell’s true intentions. The court found that the error was significant enough to warrant rectification, thereby allowing the will to be amended to reflect the deceased's true wishes. The court ordered that the will be rectified to ensure it accurately represented Mrs Luttrell’s intentions.

Orders