Long v Long; Estate of Ethel Edith Long [2004] NSWSC 1002

Long v Long; Estate of Ethel Edith Long [2004] NSWSC 1002

On the balance of probabilities, the intention of Mrs Long when executing her 1994 will was that clause 2 should refer to 'all my real and personal estate', consistent with her prior wills and the description in the cover letter of 15 February 1994. The reference to 'personal estate' only was a drafting mistake; rectification is warranted to give effect to her intention under s.29A of the Wills Probate and Administration Act 1898.

Parties
Plaintiff: Ernest William George Long; First Defendant: Gregory Ernest Long; First Defendant: Averil Ethel White; Second Defendant: Miranda Jane Long; Second Defendant: Penelope Catherine Long; Second Defendant: Tamara Margaret Onus; Second Defendant: Dale Kenneth White
Jurisdiction
Australia
Judgment Date
29 October 2004
Procedural Posture
Application for Rectification of Will / Judgment After Hearing
Outcome
Order for rectification of will granted.
Legal Topics
Wills, Rectification, Testator Intention, Personal Estate Vs Real Estate
Succession Law Wills Rectification Testator Intention Personal Estate Vs Real Estate

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Parties

Ernest William George Long

Plaintiff

Gregory Ernest Long

First Defendant

Averil Ethel White

First Defendant

Miranda Jane Long

Second Defendant

Penelope Catherine Long

Second Defendant

Tamara Margaret Onus

Second Defendant

Dale Kenneth White

Second Defendant

Procedural Posture

Application for Rectification of Will / Judgment After Hearing

Legal Issues

  1. 1 Whether the will of Ethel Edith Long should be rectified under s.29A of the Wills Probate and Administration Act 1898 to include 'real and personal estate' instead of 'personal estate' only.

Ratio Decidendi

On the balance of probabilities, the intention of Mrs Long when executing her 1994 will was that clause 2 should refer to 'all my real and personal estate', consistent with her prior wills and the description in the cover letter of 15 February 1994. The reference to 'personal estate' only was a drafting mistake; rectification is warranted to give effect to her intention under s.29A of the Wills Probate and Administration Act 1898.

Court Disposition

Order for rectification of will granted.

Orders

  • Order pursuant to s.29A of the Wills Probate and Administration Act 1898 rectifying the will made on 8 March 1994 by inserting the words 'real and' after the word 'my' and before the words 'personal estate' on the fifth line of Clause 2 in the said will.