Menna v Jacobs; Re The Estate of Catherine Nolan [2004] NSWSC 1191

Menna v Jacobs; Re The Estate of Catherine Nolan [2004] NSWSC 1191

The cross-claim for rectification failed because the codicil faithfully recorded the dispositive instructions the testatrix gave and approved; her mistake was a mistake about the extent of her estate that went to the formation of her testamentary intention, not a failure of expression in the will within s 29A. In any event, the Court could not be satisfied that she would have increased each named beneficiary's gift proportionately, so the proposed rectification did not reflect a proven actual intention.

Jurisdiction
Australia
Judgment Date
01 December 2004
Procedural Posture
Probate Proceedings Concerning a Will and Codicil, With a Cross Claim for Rectification Under S 29 a of the Wills Probate and Administration Act 1898 / Judgment on Application for Probate in Solemn Form and Cross Claim for Rectification
Outcome
Probate granted in solemn form; leave to file the late rectification cross-claim granted; rectification refused and cross-claim dismissed; costs ordered out of the estate.
Legal Topics
['wills' 'codicils' 'rectification of Wills' 'testamentary Intention' 'mistake as to Extent of Estate' 'probate in Solemn Form']
['succession' 'probate' 'equity'] ['wills' 'codicils' 'rectification of Wills' 'testamentary Intention' 'mistake as to Extent of Estate' 'probate in Solemn Form']

Case Brief

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Procedural Posture

Probate Proceedings Concerning a Will and Codicil, With a Cross Claim for Rectification Under S 29 a of the Wills Probate and Administration Act 1898 / Judgment on Application for Probate in Solemn Form and Cross Claim for Rectification

Legal Issues

  1. 1 ['Whether probate should be granted in solemn form for the will of 2 March 2001 and codicil of 5 October 2001.' 'Whether leave should be granted to file the rectification cross-claim after the 18-month period in s 29A of the Wills Probate and Administration Act 1898.' "Whether the codicil was so expressed that it failed to carry out the testatrix's intentions because she was mistaken about the extent of her estate." 'Whether the Court could be satisfied what the testatrix actually intended concerning the part of the will sought to be rectified.']

Ratio Decidendi

The cross-claim for rectification failed because the codicil faithfully recorded the dispositive instructions the testatrix gave and approved; her mistake was a mistake about the extent of her estate that went to the formation of her testamentary intention, not a failure of expression in the will within s 29A. In any event, the Court could not be satisfied that she would have increased each named beneficiary's gift proportionately, so the proposed rectification did not reflect a proven actual intention.

Court Disposition

Probate granted in solemn form; leave to file the late rectification cross-claim granted; rectification refused and cross-claim dismissed; costs ordered out of the estate.

Orders

  • ['Order that there be a grant in solemn form of the will of 2 March 2001 together with the codicil of 5 October 2001 to the plaintiffs.' 'Refer the grant to the Registrar in Probate to perfect the grant.' 'Extend the time for filing a cross-claim seeking rectification under s 29A of the Wills Probate and...