Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274

Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274

The deceased's instructions and intentions at the time of executing the will were that her daughter, Sandra Vescio, should benefit from any retirement unit acquired with proceeds of sale of her home at 11 Grevillea Street, in the same way as from the original home, and the will's failure to so provide arose because it did not fully give effect to those instructions. Therefore, rectification should be ordered to include such retirement unit in the gift to Mrs Vescio.

Jurisdiction
Australia
Judgment Date
05 November 2010
Procedural Posture
Succession – Will Rectification Application / Judgment on Application for Rectification
Outcome
Order that the will be rectified; precise form of rectifying order to be settled after further submissions.
Legal Topics
['rectification of Wills' "interpretation of Testator's Instructions" 'ademption of Specific Gifts']
['succession Law' 'probate'] ['rectification of Wills' "interpretation of Testator's Instructions" 'ademption of Specific Gifts']

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

Succession – Will Rectification Application / Judgment on Application for Rectification

Legal Issues

  1. 1 ["Whether clause 3(a)(vi) of the will should be rectified under s 27(1)(b) of the Succession Act 2006 to reflect the testator's intentions and instructions." "What the testator's instructions and intentions were regarding the disposition of a retirement unit acquired in substitution for the original home."]

Ratio Decidendi

The deceased's instructions and intentions at the time of executing the will were that her daughter, Sandra Vescio, should benefit from any retirement unit acquired with proceeds of sale of her home at 11 Grevillea Street, in the same way as from the original home, and the will's failure to so provide arose because it did not fully give effect to those instructions. Therefore, rectification should be ordered to include such retirement unit in the gift to Mrs Vescio.

Court Disposition

Order that the will be rectified; precise form of rectifying order to be settled after further submissions.

Orders

  • ["The deceased's will of 30 October 2007 to be rectified by adding to clause 3(a)(vi): '(or in any retirement unit acquired with proceeds of the sale of that home, whatever may be the form of ownership of that unit)'." 'Submissions to be made on the precise form of the rectifying order and on costs.']