Davis Estate – Application of May [2010] NSWSC 989 (30 August 2010)

Last Updated: 7 September 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Davis Estate – Application of May [2010] NSWSC 989


JURISDICTION:
Equity Division
Probate List

FILE NUMBER(S):
2010/073086

HEARING DATE(S):
30 August 2010

JUDGMENT DATE:
30 August 2010

EX TEMPORE DATE:
30 August 2010

PARTIES:
Mary Phillipa May (Applicant)

JUDGMENT OF:
Palmer J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
A.J. Grant (Applicant)

SOLICITORS:
Walsh & Associates (Applicant)


CATCHWORDS:
SUCCESSION – WILLS – RECTIFICATION – no point of principle.

LEGISLATION CITED:
Succession Act 2006 (NSW) – s 27

CATEGORY:
Principal judgment

CASES CITED:


TEXTS CITED:


DECISION:
Will rectified.



JUDGMENT:

2010/073086 Davis Estate – Application of Mary Phillipa May

JUDGMENT – Ex tempore

30 August, 2010

1 This is an application under s 27 of the Succession Act 2006 (NSW) for rectification of the will of the late Mary Juletta Davis. The Plaintiff seeks rectification by the deletion of the name of Mr Justin Davis from clause 3A of the will. That rectification would have the effect of dividing the estate into six, rather than seven, parts, and the last of the six parts would be given to Mr Justin Davis jointly with his then wife.

2 The affidavit of the solicitor who took instructions for the will and drafted it, reveals the clearest case of error in complying with the intentions of the deceased. It is very clear from that affidavit that the deceased intended to divide her residuary estate into six portions and that one of those portions was to go to her son, Justin, and his then wife, jointly. That intention clearly miscarried by a typographical error when the will was finally prepared because Justin’s name was included twice. The error was not detected by the solicitor prior to the execution of the will by the deceased.

3 Accordingly, I am entirely satisfied that the orders sought should be made so as to accord the provisions of the will with the actual intention of the deceased.

4 I make orders in accordance with the Short Minutes of Order, initialled by me, dated today and placed with the papers.

– oOo –

LAST UPDATED:
6 September 2010