Valerie Elizabeth Dawson v Terrence Gregory Brazier, Kenneth John Brazier, Anthony Fletcher Brazier, Patricia Margaret Faint and Josephine Louise O'Brien [2012] NSWSC 117

Valerie Elizabeth Dawson v Terrence Gregory Brazier, Kenneth John Brazier, Anthony Fletcher Brazier, Patricia Margaret Faint and Josephine Louise O'Brien [2012] NSWSC 117

The evidence, particularly the deceased’s handwritten note, established on the balance of probabilities that the testator intended the $250,000 legacy to Anthony Fletcher Brazier to be paid out of monies held at the time of death in banks or financial institutions. The omission in the Will was due to a failure to give effect to these instructions. Rectification under s 27 of the Succession Act 2006 (NSW) was justified and consented by all parties.

Parties
Plaintiff: Valerie Elizabeth Dawson; First Defendant: Terrence Gregory Brazier; Second Defendant: Kenneth John Brazier; Third Defendant: Anthony Fletcher Brazier; Fourth Defendant: Patricia Margaret Faint; Fifth Defendant: Josephine Louise O'Brien
Jurisdiction
Australia
Judgment Date
03 February 2012
Procedural Posture
Principal Judgment / Application for Rectification of Will
Outcome
Order for rectification of Will granted
Legal Topics
Wills, Rectification of Will
Succession Wills Rectification of Will

Case Brief

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Parties

Valerie Elizabeth Dawson

Plaintiff

Terrence Gregory Brazier

First Defendant

Kenneth John Brazier

Second Defendant

Anthony Fletcher Brazier

Third Defendant

Patricia Margaret Faint

Fourth Defendant

Josephine Louise O'Brien

Fifth Defendant

Procedural Posture

Principal Judgment / Application for Rectification of Will

Legal Issues

  1. 1 Whether Will gives effect to the testator's intention
  2. 2 Whether Will should be rectified under Succession Act 2006 (NSW) s 27

Ratio Decidendi

The evidence, particularly the deceased’s handwritten note, established on the balance of probabilities that the testator intended the $250,000 legacy to Anthony Fletcher Brazier to be paid out of monies held at the time of death in banks or financial institutions. The omission in the Will was due to a failure to give effect to these instructions. Rectification under s 27 of the Succession Act 2006 (NSW) was justified and consented by all parties.

Court Disposition

Order for rectification of Will granted

Orders

  • Order for rectification of clause 3(d) of the Will to add 'to be paid out of the monies held by me in banks or other financial institutions' after '(250,000)'
  • Orders 1, 2, 3, 4 and 5 made in accordance with the Summons filed 1 February 2012