Re Swain (Dawn)

In the matter of the estate of the deceased, Dawn Swain, the plaintiff, an interested party, sought to rectify a codicil under section 29A of the Wills, Probate and Administration Act 1898. The dispute involved the interpretation and rectification of a codicil to the deceased's will, which altered the distribution of her estate. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether sufficient cause existed for the plaintiff's failure to apply for rectification in a timely manner. The court acknowledged the general principle that it is reluctant to order rectification of a will out of time, particularly when a grant of probate is an order in rem. However, the court also recognised that rectification of a will out of time could be justified if there was a strong reason for the delay. The court considered whether the testatrix's intention could be ascertained and whether the delay could be excused.

The court ultimately determined that the plaintiff had shown sufficient cause for the late application. The court found that the delay could be excused based on the facts of the case, including the circumstances surrounding the making of the codicil and the efforts made by the plaintiff to rectify the will. The court also considered how the testatrix's intention should have been expressed in the codicil and whether the rectification would accurately reflect her wishes. The court concluded that rectification was warranted to correct the errors in the codicil and ensure that the testatrix's intentions were properly carried out.

The court ordered the codicil to be rectified to reflect the testatrix's true intentions, allowing the plaintiff to proceed with the administration of the estate according to the corrected will. The court emphasised the importance of considering the circumstances of each case when deciding whether to permit a late application for rectification and highlighted the need for careful drafting of codicils to avoid potential disputes.