Re Will of McCowen

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.