Re Estate of Moore (rectification) - [2025] VSC 527

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2016 09391

IN THE MATTER of the Will and Estate of ELIZABETH MARY MOORE (deceased)
~~ANNETTE ELIZABETH MOORE~~	~~First Plaintiff~~
-and-
~~MALCOM NEVILLE MOORE~~	~~Second Plaintiff~~
-and-
INES KALLWEIT (as Administrator of the estate of ELIZABETH MARY MOORE)	Third Plaintiff

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JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2025 and 19 August 2025
DATE OF RULING:	19 August 2025 (delivered ex tempore and revised 29 August 2025)
CASE MAY BE CITED AS:	Re Estate of Moore (rectification)
MEDIUM NEUTRAL CITATION:	[2025] VSC 527

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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 [2014] UKSC 2 - Bell v Georgiou [2002] EWHC 1080 (Ch) - Ochea v Percival and McMahon [2022] QSC 236 – Lewis v Lewis (2021) 105 NSWLR 451.

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APPEARANCES:	Counsel	Solicitors
For the Third Plaintiff	A Verspaandonk	KHQ Lawyers

TABLE OF CONTENTS

The will of Elizabeth Moore............................................................................................................ 1

Background......................................................................................................................................... 1

Rectification Application................................................................................................................. 2

The statutory power to rectify a will.......................................................................................... 3

Evidence relevant to the rectification............................................................................................. 3

Principles on rectification................................................................................................................ 8

The meaning of ‘clerical error’ in s 31(1)(a) of the Wills Act 1997.......................................... 11

Conclusion......................................................................................................................................... 15

HER HONOUR:

The will of Elizabeth Moore

Elizabeth Mary Moore died on 17 November 2015 and was survived by her four children, Annette Elizabeth Moore, Malcolm Neville Moore, Gavin John Moore and Loren James Moore.[1] She left a Will dated 15 July 2014. It was a complex Will, which has given rise to multiple applications to this Court on issues of administration. A statement of the estimated value of the residuary estate as at 18 July 2025, indicates that the estate has estimated net assets of $8,413,219.93.[2]
[1]Seventh Affidavit of Ines Kallweit sworn on 18 August 2025 filed in related proceeding in the matter of the estate of Elizabeth Mary Moore, Supreme Court proceeding number S ECI 2022 04720 and read in this proceeding, [2].
[2]Statement of estimated value of the residuary estate of Elizabeth Moore as at 18 July 2025, MFI-1.

Background

This application is an application by the current administrator of the Will, Ms Ines Kallweit, for rectification of the Will, which is made pursuant to s 31 of the Wills Act 1997 (Vic). I address the nature of the rectification sought below, but it is first appropriate to make some brief observations about the procedural background to the application.

The rectification application was first before me on 22 July 2025 and heard in full on 19 August 2025.

The application was first made on notice to the various beneficiaries of the Will.[3] However, no beneficiary sought to be heard. Loren Moore was…

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 Re Estate of Moore (rectification)

Details

AGLC: Re Estate of Moore (rectification) [2025] VSC 527
Case: [2025] VSC 527
Decision Date: 19 August 2025 (delivered ex tempore and revised 29 August 2025)

CaseChat Overview and Summary

In the case concerning the estate of Moore, the dispute arose over the interpretation and potential rectification of a will. The matter was heard in the Supreme Court of Victoria. The primary issue was whether the will, as drafted, accurately reflected the intentions of the deceased, Mr. Moore, and whether there existed grounds for rectifying the will under section 31(1) of the Wills Act 1997 (Vic). This necessitated a determination of whether any errors in the will amounted to clerical mistakes that failed to convey the deceased’s true intentions.

The court examined several aspects to resolve this, including whether the will, as it stood, accurately expressed the testator’s wishes and if any discrepancies were due to clerical errors. The definition and scope of ‘clerical error’ were scrutinized, with reference to relevant case law such as Re Estate of Prevost, Marley v Rawlings, Bell v Georgiou, Ochea v Percival and McMahon, and Lewis v Lewis. The court needed to balance the principle that wills should reflect the true intentions of the testator with the legal constraints on making substantial alterations to a will post-execution.

The Supreme Court concluded that the will did not fully capture the deceased's intentions and that the errors identified were indeed clerical in nature. The court found that the rectification was warranted to ensure the will aligned with the testator's true intentions. As a result, the court ordered the will to be rectified to reflect the true wishes of Mr. Moore, ensuring that his estate was distributed according to his original intentions.

Orders