Re Swain (Dawn) [2008] NSWSC 1343

Re Swain (Dawn) [2008] NSWSC 1343

Extension of time for rectification granted as applicant was sole beneficiary, no relevant prejudice, and testatrix's intention was to set up trust under terms of contemporaneously executed discretionary trust deed; codicil rectified by reference to trust deed.

Jurisdiction
Australia
Judgment Date
15 December 2008
Procedural Posture
Probate Application for Rectification / Judgment on Amended Summons
Outcome
Application granted: time for rectification extended, codicil rectified, grant of probate recalled and reissued.
Legal Topics
['rectification of Wills' 'codicil Interpretation' "testator's Intention" 'probate Recall' 'testamentary Trusts']
['succession Law' 'equity'] ['rectification of Wills' 'codicil Interpretation' "testator's Intention" 'probate Recall' 'testamentary Trusts']

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Procedural Posture

Probate Application for Rectification / Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether time for rectification application should be extended under s 29A Wills, Probate and Administration Act 1898' "What constitutes 'testator's intentions' for purposes of rectification" 'Requirements for rectification of a will/codicil' "Proper rectification wording to effect testatrix's intended testamentary trust"]

Ratio Decidendi

Extension of time for rectification granted as applicant was sole beneficiary, no relevant prejudice, and testatrix's intention was to set up trust under terms of contemporaneously executed discretionary trust deed; codicil rectified by reference to trust deed.

Court Disposition

Application granted: time for rectification extended, codicil rectified, grant of probate recalled and reissued.

Orders

  • ['Time for rectification application extended to 5 October 2007.' "Codicil of 8 March 2005 rectified by adding at the end of clause 1: 'such trust to be in accordance with the provisions of the Discretionary Trust Deed executed by me contemporaneously with this will.'" 'Grant of probate in common form recalled;...