Re Finch (deceased)

In the matter of the estate of Thomas Henry Finch, deceased, an application was brought before the court for an extension of time to rectify the Will of the deceased and to construe a particular clause of the Will. The deceased passed away over three and a half years prior to the application being made. The application sought an extension of time for rectification as well as the rectification itself and a declaration as to the construction of a specific clause of the Will. The court was required to determine whether it was just and proper to extend the time for making the application for rectification and whether the application was necessary to resolve the distribution of the estate. Additionally, the court had to decide whether the Will as executed carried out the intentions of the deceased and whether, upon proper construction, the relocatable home of the deceased passed under the gift in clause 4(a) of the Will.

The court found that different rules applied to the admissibility of evidence for the application for rectification and the application for construction. While extrinsic evidence could be relied upon in rectification applications, a more rigid approach applied in relation to construction applications. The court also noted that s 33C of the Succession Act 1981 allowed for the admission of extrinsic evidence to interpret a will if the language was ambiguous or made the will meaningless. However, evidence of the deceased’s intention was not admissible to establish any of the circumstances that made the will ambiguous in the light of surrounding circumstances. The court held that the paragraphs in contention were not admissible as they related to the post-testamentary intention of the deceased and not the instructions given to the deceased’s solicitor. The court further found that the application for rectification was necessary to resolve the distribution of the estate and that it was just and proper to extend the time for making the application.

Pursuant to Section 33(3) of the Succession Act 1981, the time for the making of an application for an order to rectify the Will of Thomas Henry Finch, deceased, dated 29 October 2012, was extended to allow this Application to be heard. Clause 4(a) of the Will of the said deceased was rectified by deleting the words “Any real property owned by me at the date of my death” and inserting in lieu the words “My house.” A certified copy of this Order was to be attached to the Letters of Administration with the Will of the said deceased granted to the Administrator on 11 May 2017. The court declared that, upon the proper construction of the Will of the said deceased, as rectified by this Order, the deceased’s relocatable home at 21 Regency Street, Gold Crest Manors, 17 Pappas Way West, Nerang passed under the gift in clause 4(a) of the Will. The parties were to be heard as to costs.