Re Will of McCowen [2013] NSWSC 1000

Re Will of McCowen [2013] NSWSC 1000

The evidence clearly showed that the will was not in accordance with the testator's instructions, and the paralegal's misreading of the solicitor's notes when drafting the will was a clerical error. Although other factors contributed, the clerical error was the principal reason why the will failed to carry out the testator's intentions, so rectification was justified under either limb of s 27(1) of the Succession Act 2006 (NSW).

Jurisdiction
Australia
Judgment Date
30 July 2013
Procedural Posture
Proceedings to Rectify the Last Will of Kevin Mc Cowen and to Obtain a Grant of Probate of the Will as Rectified in Solemn Form / Principal Judgment; Reasons After Orders Made on 15 July 2013
Outcome
Rectification of will granted.
Legal Topics
['rectification of Wills' 'clerical Error' "testator's Intentions" "testator's Instructions" 'proper Practice When Preparing Wills']
['succession Law' 'probate'] ['rectification of Wills' 'clerical Error' "testator's Intentions" "testator's Instructions" 'proper Practice When Preparing Wills']

Case Brief

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Procedural Posture

Proceedings to Rectify the Last Will of Kevin Mc Cowen and to Obtain a Grant of Probate of the Will as Rectified in Solemn Form / Principal Judgment; Reasons After Orders Made on 15 July 2013

Legal Issues

  1. 1 ["Whether the will did not carry out the testator's intentions because a clerical error was made." "Whether the will did not give effect to the testator's instructions." "Whether the facts showed a clerical error where a paralegal misread the solicitor's notes when preparing the draft will." "Whether a clerical error must be the sole or dominant cause of the will not carrying out the testator's intentions."]

Ratio Decidendi

The evidence clearly showed that the will was not in accordance with the testator's instructions, and the paralegal's misreading of the solicitor's notes when drafting the will was a clerical error. Although other factors contributed, the clerical error was the principal reason why the will failed to carry out the testator's intentions, so rectification was justified under either limb of s 27(1) of the Succession Act 2006 (NSW).

Court Disposition

Rectification of will granted.

Orders

  • ['Rectification of the will granted.']