Coates v Wattson; Estate of Sullivan [2013] NSWSC 604

Coates v Wattson; Estate of Sullivan [2013] NSWSC 604

The only evidence was that the testatrix instructed changes increasing the benefits to her two children and deleting three specific bequests, and gave no instructions to include clauses 4 and 5. The solicitor's evidence was that clauses 4 and 5 were included by his clerical error and contrary to instructions. The will therefore failed to carry out the deceased's intentions within s 27 of the Succession Act 2006 and was rectified. Because the evidence clearly brought the case within s 27 and the suit was not a construction suit, the plaintiff's costs were ordered on the indemnity basis out of the estate and no order was made for the defendant's costs.

Jurisdiction
Australia
Judgment Date
17 May 2013
Procedural Posture
Summons for Probate of a Will With a Claim for Rectification / Principal Judgment
Outcome
Will rectified; matter referred to the Registrar to complete the grant; plaintiff's costs ordered out of the estate; no order as to the defendant's costs.
Legal Topics
['rectification of Will Under S 27 of Succession Act 2006' 'clerical Error in Will Drafting' "testator's Instructions" 'costs in Contested Rectification Suit' 'grant of Probate']
['succession' 'probate and Administration' 'civil Procedure'] ['rectification of Will Under S 27 of Succession Act 2006' 'clerical Error in Will Drafting' "testator's Instructions" 'costs in Contested Rectification Suit' 'grant of Probate']

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 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Summons for Probate of a Will With a Claim for Rectification / Principal Judgment

Legal Issues

  1. 1 ['Whether the will of Doreen Dorothy Sullivan should be rectified by inserting Anne Catherine Warren\'s name after the words "my friend" in para 3(f).' "Whether clauses 4 and 5 of the will should be deleted because they were inconsistent with cl 3(h) and did not reflect the testatrix's instructions." "Whether the defendant's costs should be paid out of the estate."]

Ratio Decidendi

The only evidence was that the testatrix instructed changes increasing the benefits to her two children and deleting three specific bequests, and gave no instructions to include clauses 4 and 5. The solicitor's evidence was that clauses 4 and 5 were included by his clerical error and contrary to instructions. The will therefore failed to carry out the deceased's intentions within s 27 of the Succession Act 2006 and was rectified. Because the evidence clearly brought the case within s 27 and the suit was not a construction suit, the plaintiff's costs were ordered on the indemnity basis out of the estate and no order was made for the defendant's costs.

Court Disposition

Will rectified; matter referred to the Registrar to complete the grant; plaintiff's costs ordered out of the estate; no order as to the defendant's costs.

Orders

  • ['The will is rectified by inserting Anne Catherine Warren after the words "my friend" in para 3(f).' 'The order sought in paragraph 2 of the summons is made, with clause 2.2 to read: "By the deletion of clauses 4 and 5 of the will."' 'The matter is referred to the Registrar to complete the grant.' 'Costs of the...