Re Estate of Moore (rectification)
[2025] VSC 527
•19 August 2025 (delivered ex tempore and revised 29 August 2025)
| 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) | |
| | |
| -and- | |
| | |
| -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 represented in a separate application to this Court relating to his mother’s estate, made under order 54 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). That application was also heard on 22 July 2025 and returned for orders to be made on 19 August 2025. He did not, however, appear or seek to be heard in the rectification application.
[3]Seventh Affidavit of Ines Kallweit, [5]-[6].
At the hearing on 22 July 2025, I raised questions as to whether the evidence provided a sufficient basis on which to rectify the Will as proposed. The hearing was adjourned to 19 August 2025, to enable any further evidence to be filed. I made a direction to the plaintiff, which was confirmed by email from my chambers on 22 July 2025, to provide the unrepresented beneficiaries of the Will with a transcript of the hearing, the plaintiff’s proposed further amended originating motion and the valuations of the estate assets identified as MFI-1, so that they were on notice of the questions I had raised at the hearing.
The plaintiff's legal representatives provided the documents and transcript to the beneficiaries on 24 July 2025 with an explanatory letter which requested that they advise whether they sought to be heard or appear at the return of the hearing.[4] Malcolm and Gavin responded, but neither advised that they wished to appear at the hearing. Annette did not respond. Loren was represented for the return of the related order 54 application on 19 August 2025, but did not seek to be heard in the rectification application.
[4]Seventh Affidavit of Ines Kallweit, [6], Exhibit IK-7, 3-7.
I am, therefore, satisfied that all beneficiaries are on notice of the rectification application and of the issues to which it gives rise. I am satisfied that it is appropriate to proceed, notwithstanding the absence of any contradictor.
Rectification Application
The rectification application relates to clause 3 of Elizabeth Moore’s Will which provides:
I RELEASE each of my children from any debts owing to me by them at the date of my death save and accept for the sum of $30,300 (thirty thousand three hundred dollars) which is to be repaid to my estate by my son GAVIN JOHN MOORE (“Gavin”), from his residue.
In summary, the rectification application is for the reference to $30,300 to be rectified to read $303,000. This is on the basis that $303,000 is the amount of a loan that the testator made to Gavin shortly before the Will was executed, and it is this amount that the testator intended to have repaid by Gavin.
The summons for rectification[5] also seeks that the word 'accept' in the Will be replaced with the word 'except'. This correction is uncontroversially a typographical error and is addressed further below at [64].
[5]Summons for Rectification filed on 8 December 2023.
The statutory power to rectify a will
The application is brought pursuant to s 31 of the Wills Act which provides the Court's power to rectify. Section 31(1) states:
31 Can a will be rectified?
(1)The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied that the will does not carry out the testator's intentions because—
(a) a clerical error was made; or
(b) the will does not give effect to the testator's instructions.
This section requires the Court to be satisfied of three matters. Firstly, what the intentions of the testator were; secondly, that the will does not carry out the testator's intentions; and thirdly, that the will does not carry out the testator's intentions for one or both of two reasons: a clerical error was made, or the will does not give effect to the testator's instructions.
Evidence relevant to the rectification
Evidence was filed in support of the summons that addressed the issue of the testator's instructions and the manner in which the Will was prepared and executed.[6]
[6]The following affidavits were read: an Affidavit of Diana Mercuri affirmed 21 May 2024; an Affidavit of Peta Brown sworn 14 August 2024; and affidavits of Ines Kallweit sworn 13 August 2024, 23 October 2024, 6 December 2024, 11 February 2025, 21 July 2025 and Seventh Affidavit of Ines Kallweit.
Diana Mercuri is a solicitor at the law firm Dawes & Vary Riordan Lawyers in Tatura, Victoria. Her affidavit refers to having taken instructions from the deceased about amendments to her Will. [7]
[7]Affidavit of Diana Mercuri, [3]-[6].
Peta Brown was, at the time of making the Will in July 2014, employed by Riordan Legal, which later became Dawes & Vary Riordan Lawyers in 2015. She gave evidence about taking a telephone call from the deceased in relation to her Will.[8]
[8]Affidavit of Peta Brown, [3]-[5].
Ines Kallweit, the Administrator of the Estate in this proceeding, gave evidence of the Will and of various procedural matters.
The key evidence was that of Ms Mercuri and Ms Brown. Ms Mercuri’s evidence stated that the deceased had a telephone call with her secretary Peta Bailey (which was the full name of Ms Peta Brown at the relevant time) on 16 June 2014. During that telephone call Ms Brown made an appointment for the deceased to see Ms Mercuri.[9] Ms Mercuri's affidavit exhibited the ‘will instruction file for the will’. That included a record of timesheet entry and file note dated 16 June 2014 made by Peta Bailey which documented the call and relevantly stated:
I have made an appointment for Betty to see DM to amend her Will.
…
Gavin will be receiving $30,300 cash today and Betty wishes to lower his % in her Will to reflect this.
Betty asked if there was any notes that could be made on her Will to reflect this just in case something was to happen to her at the meantime.
I told Betty I would check with SMB and her let her know.
I phoned Betty back to let her know that I would place my file note with her Will, and that although it won't be signed or binding that her executors may wish to take note of it.[10]
[9]Affidavit of Diana Mercuri, [1]-[2].
[10]Affidavit of Diana Mercuri, Exhibit DM-1, 3.
Ms Mercuri's affidavit then stated:
On 30 June 2014, I met with Betty to take her instructions regarding the changes she wanted to make [to] her Will. Betty confirmed that she had given Gavin the sum of $30,300 to be put towards the purchase of a block and she wanted it to be paid back to her estate out of Gavin's residue.[11]
[11]Affidavit of Diana Mercuri, [3].
Ms Mercuri’s affidavit exhibited a handwritten note dated 30 June 2014,[12] which states in one set of handwriting:
[12]Affidavit of Diana Mercuri, Exhibit DM-1, 2.
Betty Moore –
gave Gavin $30,300 towards purchase of block + it is to be paid back to the Estate out of Gavin's residue
Diana to amend will to include this— DM to review old files + calculations + see how best to provide for it.
Malcolm received $200000 previously—already dealt with in will re %.
Gavin already received $50000 - not to be paid back only $30,300 to be paid back by Gavin.
all children aware of this.
—reviewed balance of will all ok—
change made [and] will signed.
That handwritten note then bears the signature of E.M. Moore and the date 30 June 2014 in different handwriting. I find that the earlier writing was Ms Mercuri’s notes and that this was the signature of Elizabeth Moore. Ms Mercuri also gave evidence as follows:
During the appointment, we reviewed Betty's existing will dated 10 February 2012. The will provided for calculations as to how the residue of the Estate was to be divided between the children. It was agreed that the existing Will would be amended the quickest and easiest way to provide for Gavin to pay back the $30,300 to the estate. Therefore, the clause that referred to releasing the children of any debts owing was amended to say save and accept from the sum of $30,300 which was required to be paid back by Gavin. It was also discussed that clause 2 of the existing Will would be removed as Neville had predeceased her.
The will was amended whilst Betty waited to sign it. Once amended the will was taken into Betty to sign.
The amendment to clause 2 as mentioned in paragraph 4 of this my affidavit, was not made and when a copy of the amended Will was sent out in the mail to Betty, she was advised via letter of the omission and asked to contact our office when she was next in Shepparton. Betty attended our office again on 15 July 2014 and resigned her will.[13]
[13]Affidavit of Diana Mercuri, [4]-[6].
Ms Mercuri exhibited a time sheet entry which was recorded as having been entered by her on 30 June 2014, which stated: [14]
[R]eviewed old will – made changes and signed new will. Betty confused as to how the residue was divided she can not recall what they did and why – advised I will review percentages from old file and get back to her on what she, Neville & Andrew worked out – she is not questioning it she is happy with it but has forgotten how they got to it.
Will was amended to quickest and easiest way to provide for Gavin to pay back the $30,300 he receive[d] from her out of his residue so it is covered.
[14]Affidavit of Diana Mercuri, Exhibit DM-1, 1.
Ms Peta Brown gave evidence that she could not recall taking the phone call with the deceased on 16 June 2014, but that, to the best of her knowledge, the file note of the telephone call exhibited to Ms Mercuri's affidavit would have been prepared contemporaneously with the telephone call it purports to record and would have been an accurate reflection of that call.[15]
[15]Affidavit of Peta Brown, [4].
Ms Kallweit’s affidavit exhibited a bank statement of the deceased covering the period 2 June to 30 June 2014.[16] It showed that there was a debit on 18 June 2014 in respect of a cheque (number 200903) for the sum of $303,000. The 18th of June was two days after the telephone call with Peta Bailey by which the deceased had made her appointment to see Ms Mercuri. It was prior to the subsequent meeting between Ms Mercuri and the deceased on 30 June 2014.
[16]Affidavit of Ines Kallweit sworn 13 August 2024, Exhibit IK-1, 36.
There was limited further evidence available about the loan to Gavin, and the circumstances in which the Will was made. The Inventory of Assets and Liabilities filed with the probate application, which was signed by Annette and Malcolm, disclosed that at the date of the testatrix's death, Gavin had a debt owing to the estate in the amount of $303,000.[17] However, there was no evidence as to the specific basis upon which the view had been formed as to the debt being in the sum of $303,000.
[17]Affidavit of Ines Kallweit sworn 13 August 2024, Exhibit IK-1, 42.
An affidavit of Loren Moore sworn 14 August 2025, was filed by the plaintiff Administrator on the day of the hearing on 19 August 2025. That affidavit stated, relevantly:
I recall on a day in June 2014, my mother had arranged to meet my brother Gavin in Shepparton Victoria to hand him a bank cheque for a sum of money she was lending him. On the way home from that meeting my mother purposefully called into my farm to tell me that she had given Gavin a bank cheque and that the whole amount was to be taken off Gavin's share of the Estate when he received his inheritance. My mother was clear, in that she said that the monies she was lending him were all to be repaid from his inheritance.
I further recall that at this time the deceased was not well, as a result of her medical conditions, she was prone to making mistakes with the farm business, including paying certain people more than once.
After my mother's death I became aware that my mother's tax accountant had documented the loan to Gavin as $303,000.[18]
[18]Affidavit of Loren James Moore sworn on 14 August 2025, [2]-[4].
It is appropriate to observe that Loren’s evidence is fairly general evidence, hearsay in nature and (understandably) not supported by any documentation. More importantly, in deposing to conversations Loren had with his mother about the loan to Gavin, the affidavit in that respect does not refer to the amount of the loan.
It is also relevant that there is a conflict in the available evidence as to the payment made, and specifically in what form it was made. Loren refers to a ‘bank cheque', but it is uncertain whether this was a bank cheque in the formal sense, or a personal cheque from the bank. Ms Brown (formerly Bailey)’s file note refers to the intention to pay Gavin ‘cash’, as having been referred to by the deceased in the telephone call. I make the inference from the evidence of the bank statement that what was actually done was that the deceased had a personal cheque drawn in the amount of $303,000.
No specific evidence was available that this amount was paid directly to Gavin, or otherwise what was done with that money. I was informed in submissions by counsel for the Administrator that in fact no property had been purchased by Gavin. I accept however that Loren’s evidence supports a conclusion that Gavin was given a cheque by his mother in June 2014. Other evidence before the Court, which showed Gavin's reaction to the present application, demonstrated that he had not, at any point, taken issue with the proposition that he had received $303,000 from his mother by way of a loan.[19]
[19]See Seventh Affidavit of Ines Kallweit, [7], Exhibit IK-7, 8 (Email from Gavin to Ms Ines Kallweit on 30 July 2025, responding to the letter at [6] above, and which does not take issue with the proposition in that letter that he received $303,000 from his mother).
Principles on rectification
The principles on rectification were helpfully outlined in the plaintiff’s submissions. The plaintiff refers first to Re Estate of Prevost[20] in which Justice Whelan drew on interstate authorities to identify principles applicable to an application for rectification. Those principles are summarised in their submissions. Those most relevant to the present application are as follows.
[20][2004] VSC 537.
First his Honour observed:
Before the power of rectification can be exercised the Court must be satisfied that the will was so expressed that it failed to carry out the testatrix’s intentions, and also what it was that the testatrix did intend concerning the part of the will which is to be rectified.[21]
[21][2004] VSC 537, [17(1)]. His Honour referred to Rawack v Spicer [2002] NSWSC 849, [26]; Re Estate ofDippert [2001] NSWSC 167, [18], Trimmer v Lax, unreported, Supreme Court of New South Wales, 6 (Hodgson J).
His Honour then states as the second and third propositions:
What must be shown is what the testatrix’s actual intention was, not what her intention probably would have been had she thought about the matter.[22]
Although the standard of proof is on the balance of probabilities, clear and convincing proof is required.[23]
[22][2004] VSC 537, [17(2)]; for this proposition, his Honour cites the unreported decision of Trimmer v Lax, 6.
[23][2004] VSC 537, [17(3)]; for this proposition, his Honour cites Trimmer v Lax, 6.
His Honour also referred to the principle that:
If there is no evidence to show what the testatrix’s intention was in the event of certain things happening, the Court cannot rectify the will.[24]
[24][2004] VSC 537, [17(5)]; for this proposition, his Honour cites Re Estate of Dippert [2001] NSWSC 167, [18].
It is also relevant to refer to the guidance in the authorities with respect to the standard of proof. In Rawack v Spicer[25], Campbell J observed:
To allege that a testator, particularly when a will has been made in a formal fashion and with legal advice, has incorrectly stated, or unclearly stated, his or her intentions in that Will, is to allege a fairly grave matter - not as far advanced, in the spectrum of gravity of allegations, as an allegation of fraud, but still fairly grave.[26]
[25][2002] NSWSC 849.
[26][2002] NSWSC 849, [31].
Taking these authorities into account, I am not satisfied that the evidence establishes to the requisite degree that the deceased’s intention was to have Gavin repay $303,000 from his share of the estate, rather than the sum of $30,300.
The matters that have led to that conclusion arise from the following evidence available as to the testator's intention.
The primary evidence is that of Ms Mercuri and Ms Brown as to the instructions that were taken from the deceased at the time immediately preceding the making of her Will, and at the time it was made. There is evidence that on three different occasions, the deceased confirmed that the amount to be repaid by Gavin, from his entitlement to residue under the Will, was an amount of $30,300. This occurred both orally, by the deceased's instructions to Ms Brown and Ms Mercuri, and in writing, by her confirmation of both instructions and the terms of the Will, which referred to $30,300.
Firstly, Ms Brown gives evidence that her file note of telephone instructions having been taken from the deceased, which referred to an amount of $30,300, would have been an accurate record of that telephone call on 16 June 2014.[27]
[27]Affidavit of Peta Brown, [4].
Secondly, Ms Mercuri gives evidence that she conferred in person with the deceased on 30 June 2014. Ms Mercuri gives evidence that in her conference with the deceased, she was instructed by the deceased that the amount to be repaid by Gavin from his inheritance was $30,300.[28]
[28]Affidavit of Diana Mercuri, [3]-[4].
The handwritten file note which is exhibited to Ms Mercuri's affidavit, refers to the amount of $30,300 twice in the note. That note was signed at the bottom of the page by the deceased, and I conclude that she saw those references to $30,300 before signing it. Ms Mercuri’s computer timesheet entry and file note of the meeting on 30 June 2014 is also exhibited and refers to $30,300.
The third element of the evidence that confirms the instructions given by the deceased, and that her likely intention at the time was for an amount of $30,300 to be repaid by Gavin from his residue entitlement, is that the Will, which refers to that sum both in figures and in words, was first signed by the deceased on 30 June 2014, and signed again by her when it had to be amended, on 15 July 2014.
In opposition to that evidence, there is the evidence that what the deceased was intending to do was ensure that Gavin repays the entire loan amount that she loaned to him at that time. There is no evidence that the intention was to have him repay only part of the amount that she lent to him. I do infer from the evidence that the amount of $303,000 that was withdrawn by cheque from the deceased's bank account on 18 June 2014 was provided to Gavin.
However, taking all of the evidence as a whole, it still remains unclear whether the error was in the amount that was actually withdrawn and paid to him,[29] or the instructions referring to $30,300 that she gave to Ms Brown and Ms Mercuri and signed off on three separate occasions (when she signed the handwritten note and the two versions of her Will on 30 June 2014 and 15 July 2014).
[29]That is, a cheque payment of $303,000 when the deceased had intended to pay $30,300.
Given the repeated occasions on which the deceased referred to the sum of $30,300 as being the amount that Gavin was to be receiving and the amount that was to be identified in the Will as to be repaid from his inheritance, the evidence does not, in my view, establish that the testator's intention was anything other than that the sum of $30,300 be subtracted from Gavin's inheritance.
It is possible that what did occur was a mistake in the amount that was provided to Gavin in the cheque for $303,000. The evidence does not enable me to draw any firm conclusion on that, and it would not be necessary to make any final determination on that question. The important point is that the evidence does not reach the necessary standard to establish that the deceased's intention was other than that $30,300 be subtracted from Gavin's inheritance.
The second issue is that even if I had been satisfied that the Will did not carry out the deceased's intention, it would be necessary to be satisfied of one of the two matters in s 31(1). That is, either (a) that a clerical error was made, or (b) that the will does not give effect to the testator’s instructions.
The plaintiff accepted quite properly that there was no question of the latter circumstance applying given that the evidence was clear that the Will carried out the instructions which were actually given by Elizabeth Moore to Diana Mercuri. The question is therefore whether there was a ‘clerical error’.
The meaning of ‘clerical error’ in s 31(1)(a) of the Wills Act 1997
The question to consider here is whether the testator’s mistake, if she did (contrary to my conclusion above) make a mistake in referring to the amount of $30,300 rather than $303,000, constitutes a ‘clerical error’ within the meaning of section 31(1)(a) of the Wills Act.
There is some guidance in the authorities as to the scope of what may be understood as a ‘clerical error’ in this context.
The key authority is Marley v Rawlings[30], a decision of Lord Neuberger with whom Lords Clarke, Sumption and Carnwath agreed. Relevantly, Lord Neuberger when discussing the English legislative equivalent to section 31, which also refers to ‘clerical error’, stated (emphasis added):
I accept that the expression ”clerical error” can have a narrow meaning, which would be limited to mistakes involved in copying or writing out a document, and would not include a mistake of the type that occurred in this case. However, the expression is not one with a precise or well-established, let alone a technical, meaning. The expression also can carry a wider meaning, namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of, a document (save, possibly, to the extent that the activity involves some special expertise). Those are activities which are properly to be described as “clerical”, and a mistake in connection with those activities, such as wrongly filing a document or putting the wrong document in an envelope, can properly be called “a clerical error”.
For present purposes, of course, “clerical error” is an expression which has to be interpreted in its context, and, in particular on the assumption that s 20 is intended to represent a rational and coherent basis for rectifying wills. While I appreciate that there is an argument for saying that it does nothing to discourage carelessness, it seems to me that the expression “clerical error” in s 20(1)(a) should be given a wide, rather than a narrow, meaning.[31]
[30][2014] UKSC 2.
[31][2014] UKSC 2, [75]-[76].
The error in that case arose on the execution by a husband and wife of each other’s wills.[32] On attending the solicitor, each testator was handed the other’s will and nobody noticed. It was held that this did, in fact, constitute a clerical error. In that case, there was error both on the part of the law firm and on the part of the testators signing the other’s will. Lord Neuberger did advert to the question of whether the maker of a ‘clerical error’ could be the testator alone. His Honour concluded:[33]
The best judicial summary of the effect of the cases so far decided on s 20(1)(a) was given by Blackburne J in Bell v Georgiou [2002] EWHC 1080 (Ch)…:
“[8]…The essence of the matter is that a clerical error occurs where someone, who may be the testator himself, or his solicitor, or a clerk or typist, writes something which he did not intend to insert or omits something which he intended to insert. … The remedy is only available if it can be established not only that the will fails to carry out the testator’s instructions but also what those instructions were…”
[32]Outline of Plaintiff’s Submissions dated 15 July 2025, [34]-[36].
[33][2014] UKSC 2, [71].
Having referred to this passage, Lord Neuberger observes:
If, as a result of a slip of the pen or mistyping, a solicitor (or a clerk or indeed the testator himself) inserts the wrong word, figure or name into a clause of a will, and it is clear what word, figure or name the testator had intended, that would undoubtedly be a clerical error which could be rectified under s 20(1)(a).[34]
[34][2014] UKSC 2, [72].
Lord Neuberger’s analysis has been followed in the case of Lewis v Lewis, by Leeming JA with whom Meagher and Payne JJA agreed.[35]
[35](2021) 105 NSWLR 451, 525 [165].
In the Queensland case of Ochea v Percival and McMahon[36], Cooper J held that:
A clerical error may occur when someone, who may be the testator himself, or the testator’s solicitor, or a clerk or a typist, writes something in the will which he or she did not intend to insert or omits something which he or she intended to insert. The introduction of a clause which is inconsistent with the testator’s intentions in circumstances in which the person drafting the will fails to apply his or her mind to its significance or effect may also be a clerical error.[37]
[36][2022] QSC 236.
[37][2022] QSC 236, [20].
The plaintiff also refers to my decision in ReEstate of Luttrell[38] in which I considered authorities considering clerical error in the context of the Wills Act and concluded that it did bear a broad meaning.
[38][2024] VSC 598.
Considering all of those authorities as to the breadth of the potential meaning of clerical error, and the acknowledgement that it may be an error made by the testator him or herself, I do not think it extends to a situation where the testator has made some anterior mistake and given oral instructions that may reflect a mistake, and this is for two reasons.
First, it is quite plain that the error must be ‘clerical’ in nature.
The way in which this has been described in the authorities, including Marley v Rawlings, refers to a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending and organising the execution of the document, or a mistake in connection with those activities, such as wrongly filing a document or placing the wrong document in an envelope. It is apparent from the authorities that this does not have to mean that the error is made by a clerk, or a solicitor, or indeed anyone from the relevant office of the lawyers preparing the will. It can mean that it is made by the testator, but as Lord Neuberger emphasised, there must an error in the course of activities which are properly described as ‘clerical’ in nature. As applied to an error by a testator, this may encompass an error of a kind that may be made in the course of clerical work such as the testator making a typographical error when writing instructions.
The authorities all deal with situations of a mistake being made during office work, such as putting the wrong document in an envelope, or giving testators the wrong copy of a will, or mistakes which are in writing (or are typewritten) in the preparation of a will. The authorities do not refer to a mistake made by a testator in giving oral instructions, or in confirming the instructions that were given by signing a file note of those instructions.
Secondly, it would stretch the language of a ‘clerical error’ too far to apply it to an error said to be made by the testator in giving oral instructions to a solicitor. In providing oral instructions, the testator is not performing clerical duties and the giving of those instructions by the testator does not arise in connection with office work of a routine nature.[39] It is yet more difficult to characterise instructions which are given orally and confirmed multiple times and on distinct occasions as involving ‘clerical error’.
[39]Marley v Rawlings [2014] UKSC 2, [75], (Lord Neuberger, Lord Clarke, Lord Sumption and Lord Carnwath agreeing).
The authorities of Marley v Rawlings,[40] and Bell v Georgiou[41] emphasise the clerical nature of the error and refer repeatedly to written errors. Justice Cooper of Ochea v Percival and McMahon,[42] also refers to errors in recording instructions in writing. This confirms my view that it would be too significant of an extension of the meaning of clerical error to apply it to circumstances of a testator giving oral instructions and signing off on those instructions, such as has arisen in this case.
[40][2014] UKSC 2, [71]-[72]; [75] (Lord Neuberger, Lord Clarke, Lord Sumption and Lord Carnwath agreeing).
[41][2002] EWHC 1080 (Ch) (Blackburne J).
[42][2022] QSC 236.
In this case, I have decided that the evidence does not establish a mistake in the instructions themselves in any event. However, if I was wrong in that, the question is whether a particular reference to a monetary figure in oral instructions to the lawyers charged with preparing a will, and repeated affirmation of that figure in writing by the testator signing off on written instructions, and two versions of the will, constitutes a clerical error. In my view it does not. It does not bear the character of an error which occurs in the context of ‘clerical’ activity or an error which could properly be described as such, notwithstanding that it is the actions of the testator rather than a person working in the office.
Conclusion
For the reasons above, I am not satisfied that it is appropriate to rectify clause 3 of the Will by substituting $303,000 for the sum of $30,300.
In coming to that conclusion, I observe that it was an appropriate application to make. That is because of the suggestion in the evidence that the sum leant to Gavin was the larger sum and the testator had intended that amount be repaid. The costs of the application should be indemnified from the residual estate.
There also remains utility in the second, more minor rectification sought to clause 3, given that that clause 3 still has work to do. I find that the spelling of ‘except’ and ‘accept’ was an inadvertent clerical error which does not reflect the testator’s intention. I will make the order that the word 'accept' be replaced by the word 'except' in clause 3 of the Will.
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