Seccombe v Maluta & Anor [2009] NSWSC 1174

Seccombe v Maluta & Anor [2009] NSWSC 1174

The Court was comfortably satisfied that, when executing her last will, the testatrix intended clause 6 to confer on the Plaintiff an option to purchase the Lennox Head property at exactly the Valuer General's latest valuation of the unimproved land value, and that the inclusion of the words "not less than" was a drafting mistake by the solicitor. The will was therefore rectified as sought. Although the mistake was made by the solicitor, the Defendants were responsible for unnecessary proceedings by refusing without demonstrable good reason to accept the admitted and evident drafting mistake, so they were ordered to pay the Plaintiff's costs.

Jurisdiction
Australia
Judgment Date
02 November 2009
Procedural Posture
Succession – Rectification of Will / Ex Tempore Judgment on Summons for Rectification of Will
Outcome
Will rectified as sought.
Legal Topics
['rectification of Will' "testatrix's Actual Intention" 'solicitor Drafting Error' 'costs']
['succession' 'equity'] ['rectification of Will' "testatrix's Actual Intention" 'solicitor Drafting Error' 'costs']

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Procedural Posture

Succession – Rectification of Will / Ex Tempore Judgment on Summons for Rectification of Will

Legal Issues

  1. 1 ['Whether clause 6 of Mary Elizabeth Seccombe\'s will should be rectified by deleting the words "not less than".' "Whether the Plaintiff proved the testatrix's actual intention and that her solicitor made a drafting error." 'Whether the Defendants or the solicitor who made the drafting error should bear the costs of the proceedings.']

Ratio Decidendi

The Court was comfortably satisfied that, when executing her last will, the testatrix intended clause 6 to confer on the Plaintiff an option to purchase the Lennox Head property at exactly the Valuer General's latest valuation of the unimproved land value, and that the inclusion of the words "not less than" was a drafting mistake by the solicitor. The will was therefore rectified as sought. Although the mistake was made by the solicitor, the Defendants were responsible for unnecessary proceedings by refusing without demonstrable good reason to accept the admitted and evident drafting mistake, so they were ordered to pay the Plaintiff's costs.

Court Disposition

Will rectified as sought.

Orders

  • ['Order sought in paragraph 1 of the Summons made.' 'Clause 6 of the will rectified by deletion of the words "not less than".' "The Defendants are to pay the Plaintiff's costs of the proceedings."]