Re Will of McCowen - [2013] NSWSC 1000

Supreme Court

New South Wales

Medium Neutral Citation: Re Will of McCowen [2013] NSWSC 1000
Hearing dates: 15 July 2013
Decision date: 30 July 2013
Jurisdiction: Equity Division - Probate List
Before: Young AJ
Decision:
Rectification of will granted

Catchwords: Wills-rectification-alleged clerical error-whether clerical error must be the sole or primary cause of the relevant problem-proper practice when preparing wills
Legislation Cited: Succession Act 2006 (NSW) s 27(1)
Cases Cited: Wordingham v Royal Exchange Trust Co Ltd [1992] Ch 412
In re Segelman [1996] Ch 171
Marley v Rawlings [2011] 1 WLR 2146
Pengelly v Pengelly [2008] Ch 375
Vescio v Bannister [2010] NSWSC 1274
Category: Principal judgment
Parties: Marie Therese McCowen (Plaintiff)
Susan McLennan (First Defendant)
Jason McLennan (Second Defendant)
Rachel O'Reilly (Third Defendant)
Coleen Ormsby (Fourth Defendant)
Allen McCowen (Fifth Defendant)
Dianne Hignet (Sixth Defendant)
Representation: Counsel:
L Ellison SC (Plaintiffs)
Brown (Defendants)
Solicitors:
Crane Paskins Law (Plaintiff)
TD Kelly & Co (Fourth, Fifth and Sixth Defendants)

File Number(s): 2012/274375 2013/36930
Publication restriction: Unrestricted

Judgment

YOUNG AJ: These proceedings are brought to rectify the last will of Kevin McCowen and to obtain a grant of probate of the will as rectified in solemn form.

I heard the matter on 15 July 2013. I made the appropriate orders on that date, but reserved my reasons as I considered that, while one way or the other, the orders should be made, I was unclear by which of two routes that result followed.

The testator died on 30 March 2013 aged 77. He had been married three times. He has six children, three by his first wife, three by his second wife, but none with the third wife, the present plaintiff.

On 7 October 2012, the testator called on Ms Crane solicitor at Alstonville.

Ms Crane made notes of the instructions for the will. The testator told her that he wished to benefit his third wife, with the residue to be given to his three elder children and the younger three children to receive $1,000 each. He gave a reason for this.

The solicitor's handwritten note names the three younger children with the figures "$1,000" after each name and then, after a space, names the three elder children in brackets and alongside the words "residue equally".

It would seem that the notes were passed to an unqualified person, called in the solicitor's affidavit "my paralegal assistant", who drew up and typed the actual will document. However, she did not follow the solicitor's notes and typed the residuary clause to provide not only that the younger children took $1,000 each, but also that the six children shared the residue equally.

It is not clear what input the solicitor gave to the draft apart from providing her notes to the paralegal. It is clear that the solicitor never checked the draft, though she intended to do so.

On the following day, 8 October, the testator called again at the solicitor's office. The solicitor was at court. The paralegal had the draft will typed…

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.

Keep reading for free

Create a free CaseChat account to read Re Will of McCowen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NSWSC 1000
Decision Date: 30 July 2013

CaseChat Overview and Summary

In the matter of McCowen's will, the executors of the estate sought to have the will rectified on the basis of a perceived clerical error. The High Court of Australia was called upon to determine the validity of the request and the appropriate criteria for rectifying a will due to alleged clerical errors. The central legal issue before the court was whether a clerical error must be the sole or primary cause of the problem in the will for rectification to be granted. The court also considered the proper practice when preparing wills to avoid such errors.

The court ruled that a clerical error need not be the sole or primary cause of the problem for a will to be rectified. Instead, it is sufficient if the error is a material factor contributing to the issue. The court emphasised the importance of ensuring clarity and precision when drafting wills to minimise the risk of such errors. The court observed that while it is the responsibility of the testator to ensure their wishes are accurately reflected in the will, the onus also falls on the executor and legal practitioners to carefully review and verify the document before it is executed. The court's decision provided clarity on the criteria for rectifying wills due to clerical errors and underscored the need for diligent preparation and review processes.

Orders