What happens when the intentions of the testator are not reflected in the will?
This situation can arise from many reasons-but more commonly from poor drafting or miscommunication.
This arose in Rose v Tomkin & Ors (2017) QCA 157, where the Court had to consider the terms of a will dealing with the residuary estate.
The current rectification power is contained in s 33 of the Succession Act 1981 (Qld) which provides:
S.33 Court may rectify a will
(1) The court may make an order to rectify a will to carry out the intentions of the testator if the court is satisfied that the will does not carry out the testator’s intentions because—
(a) a clerical error was made; or
(b) the will does not give effect to the testator’s instructions.
In order that the power to rectify a will be enlivened under s 33 of the Act, a party is required to satisfy the Court that the Will did not carry out the testator’s intentions because the terms of the Will did not give effect to their instructions and wishes. That intention must be examined as at the date of the will, not the date of death.
The legal principles in respect of the rectification power in s 33(1)(b) of the Act may be summarised as follows:
- The Court must ascertain the testator’s intention, that is, the actual intention of the testator reflected in the instructions given by the testator, not what would probably have been the intention in the circumstances that eventuated.
- The Court must construe the provision of the will sought to be rectified.
- The Court is required to compare the relevant provision of the will properly construed with the testator’s intention as ascertained.
- The Court must be satisfied the relevant provision of the will does not carry out the testator’s intentions because it does not give effect to the testator’s instructions and that rectification in the terms sought would give effect to those instructions.
- The Court must be so satisfied on the balance of probabilities, on clear and convincing proof.
The Court found after reviewing the evidence before it, as to the instructions given for the will that “the Will did not carry out Ms Jones’ intentions because it did not give effect to her instructions that her half interest go to her children. The Will was only capable of achieving the result that her children received a half interest in the event that her partner’s will was (and remained) in the same terms. The Will as drafted was not capable of guaranteeing that a half interest pass to them. But it is evident that Ms Jones’ instructions were to safeguard her children’s inheritance without qualification. That is consistent with the advice given to her by her solicitor to sever the joint tenancy.”
Having found that there was clear and convincing proof that the will did not carry out the testatrix’s intentions because it failed to give effect to her instructions, the Court ordered that the will be rectified
If you have any queries in respect of these matters please do not hesitate to contact us.
