True intentions: rectifying Wills

Section 33(1) of the Succession Act 1981 (Qld) (Act) empowers a court to make an order to rectify a Will to carry out the testator’s intentions. The court must be satisfied that the Will does not carry out the testator’s intentions because of a clerical error or because the Will does not give effect to the testator’s instructions.  It is important to note that a rectification application must be made within six months of the date of the testator’s death, however the court may extend this timeframe if it considers it appropriate.

Section 33C of the Act allows the court to use extrinsic evidence, including evidence of the testator’s intention, to interpret the language used in a Will if the language used is meaningless or ambiguous.  In making its decision the court will consider evidence of what was known and what occurred at the time the Will was made.  The court must ascertain the actual intention of the testator at the time the Will was made and not what may have been their intention in the circumstances that eventuated. 

In Dillon v Henderson [2018] QSC 236, the testator used a Will kit containing a revocation clause to make his Will when he returned to Australia from Malaysia. The court found the testator intended to only dispose of his Australian assets and rectified the Will by adding the words ‘except for my Malaysian will executed on 22 April 2018’ to the revocation clause.

In The Public Trustee of Queensland v Cole [201b9] QSC 298, the Will provided that the estate pass to the testator’s ‘great nieces and nephews’ and her intended husband’s ‘great nephews and nieces’. The court found that the testator intended for the word ‘great’ to qualify all of the words ‘nieces’ and ‘nephews’ and rectified the Will to read ‘my great nieces and great nephews and my intended husband’s great nephews and great nieces’.

In Mann v Mann & Ors [2024] QSC 50, the court was asked to ascertain the testator’s intention in relation to a gift of farm property.  It found the Will did carry out the testator’s intentions, it was consistent with the instructions given and there was no suggestion of clerical error.  Accordingly, the rectification application failed.

If you are an executor, a beneficiary or a person who may have a legal interest in an estate and the Will does not reflect the testator’s intentions due to a clerical error or a failure to give effect to the testator’s instructions, we recommend you seek urgent legal advice as to your options. Sparke Helmore can assist with rectification applications or any other questions you may have in relation to estate administration.