Clarke Re the Estate of Timar [2005] NSWSC 1364

Clarke Re the Estate of Timar [2005] NSWSC 1364

The affidavit evidence of Mrs Lang, the attesting witness, established that the deceased intended his residuary estate to pass to his step-daughter and her husband, or the survivor of them, and the failure of the will to express this intention was sufficient to order rectification under s29A of the Wills Probate and Administration Act 1898.

Parties
Plaintiff: Vera Clarke
Jurisdiction
Australia
Judgment Date
07 March 2005
Procedural Posture
Probate (rectification of Will) / Review of Senior Deputy Registrar's Decision
Outcome
Order of Senior Deputy Registrar set aside; rectification of will granted; leave granted to bring notice of motion out of time; claim in paragraph 1 of the summons dismissed.
Legal Topics
Rectification of Will, Partial Intestacy, Probate Procedure
Wills and Estates Rectification of Will Partial Intestacy Probate Procedure

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Parties

Vera Clarke

Plaintiff

Procedural Posture

Probate (rectification of Will) / Review of Senior Deputy Registrar's Decision

Legal Issues

  1. 1 Whether the will of Leslie Timar should be rectified to reflect the testator's true intention
  2. 2 Effect of presumed intention to avoid intestacy on a claim for rectification
  3. 3 Whether new evidence adduced is sufficient to require rectification

Ratio Decidendi

The affidavit evidence of Mrs Lang, the attesting witness, established that the deceased intended his residuary estate to pass to his step-daughter and her husband, or the survivor of them, and the failure of the will to express this intention was sufficient to order rectification under s29A of the Wills Probate and Administration Act 1898.

Court Disposition

Order of Senior Deputy Registrar set aside; rectification of will granted; leave granted to bring notice of motion out of time; claim in paragraph 1 of the summons dismissed.

Orders

  • Leave granted to bring notice of motion out of time.
  • Order of Senior Deputy Registrar dated 14 December 2004 set aside.