The Estate of Terence Byrne; Osborne v Stewart [2020] NSWSC 507

The Estate of Terence Byrne; Osborne v Stewart [2020] NSWSC 507

The Will did not carry out the deceased's actual intentions due to a drafting error by the solicitor; clear evidence from instructions and file notes supported rectification; rectification was required to carry out the testator's intentions per Succession Act 2006 (NSW), s 27.

Jurisdiction
Australia
Judgment Date
08 May 2020
Procedural Posture
Application for Rectification of a Will / Judgment Following Hearing in Chambers and on the Papers
Outcome
Application for rectification of Will granted; Probate of rectified Will granted to Plaintiffs.
Legal Topics
['rectification of Wills' 'probate and Administration']
['succession Law' 'equity'] ['rectification of Wills' 'probate and Administration']

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Procedural Posture

Application for Rectification of a Will / Judgment Following Hearing in Chambers and on the Papers

Legal Issues

  1. 1 ["Whether the Will dated 4 September 2015 should be rectified under s 27 Succession Act 2006 (NSW) to carry out the deceased's intentions; Whether the Will does not give effect to the deceased's instructions for disposition of the principal residence; Whether Probate should be granted on the rectified Will"]

Ratio Decidendi

The Will did not carry out the deceased's actual intentions due to a drafting error by the solicitor; clear evidence from instructions and file notes supported rectification; rectification was required to carry out the testator's intentions per Succession Act 2006 (NSW), s 27.

Court Disposition

Application for rectification of Will granted; Probate of rectified Will granted to Plaintiffs.

Orders

  • ["Will dated 4 September 2015 is rectified by inclusion of specified words after 'insurances thereon' in Clause 3." 'Subject to compliance with Probate rules, rectified Will admitted to Probate.' 'Probate of rectified Will granted to the Plaintiffs.' 'Matter remitted to Senior Deputy Registrar in Probate to complete...