Davies re Estate of Rose [1999] NSWSC 365

Davies re Estate of Rose [1999] NSWSC 365

The evidence of the executors and of Mr Ruggero showed that the deceased intended to dispose of the whole of his estate and did not intend any part to pass on intestacy, especially where there were no next of kin and undisposed assets would pass to the State as bona vacantia. The wording referring to the Vaucluse property and "any other moneys" failed to embody that intention because it did not dispose of all property, including the Broadmeadow property and debentures. Rectification was therefore justified by inserting words to include other property.

Jurisdiction
Australia
Judgment Date
12 April 1999
Procedural Posture
Probate Application for Rectification of a Will / Judgment on Summons
Outcome
Rectification ordered.
Legal Topics
['wills' 'rectification' 'intestacy' 'bona Vacantia']
['probate' 'succession'] ['wills' 'rectification' 'intestacy' 'bona Vacantia']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Probate Application for Rectification of a Will / Judgment on Summons

Legal Issues

  1. 1 ['Whether the will of Philip Graeme Rose dated 17 August 1994 should be rectified under section 29 A of the Wills Probate and Administration Act 1898.' "Whether the will as expressed failed to carry out the testator's intention to dispose of the whole of his estate."]

Ratio Decidendi

The evidence of the executors and of Mr Ruggero showed that the deceased intended to dispose of the whole of his estate and did not intend any part to pass on intestacy, especially where there were no next of kin and undisposed assets would pass to the State as bona vacantia. The wording referring to the Vaucluse property and "any other moneys" failed to embody that intention because it did not dispose of all property, including the Broadmeadow property and debentures. Rectification was therefore justified by inserting words to include other property.

Court Disposition

Rectification ordered.

Orders

  • ['Orders as sought in paragraphs 1 and 2 of the Summons.' 'The will of Philip Graeme Rose, deceased, be rectified by inserting after the words, "115 Hopetoun Avenue Vaucluse be sold and the proceeds thereof together with any other" the words "property and".' 'Orders as sought in paragraphs 4 and 6.']