I. THE EXISTING LAW

7.1 Where the form of a document does not truly reflect the stated intentions of its party or parties, the equitable doctrine of rectification enables the court to correct the document to express those intentions. By this doctrine, words which have been mistakenly omitted can be added and words which have been mistakenly included can be omitted or altered. The principles are well settled and accepted. The possibility of this remedy operating to overthrow written agreements long after their execution is controlled by the requirement that a party seeking rectification must provide convincing proof of error and clearly establish what form the document was intended to take.

7.2 The Court has power to correct mistakes in wills, but, as we indicate below (paras 7.5-7.9), that power is more circumscribed than the equitable doctrine of rectification, and there have been many cases where clearly proved mistakes in wills have gone unrectified. The judicial armoury for dealing with such mistakes has two main approaches.

7.3 First, a court required to construe words in a will may disregard their literal effect where it is clearly apparent that a literal interpretation would defeat the intention conveyed by the document as a whole.¹

• In Tatham v Huxtable the testator empowered his executor to distribute the balance of his estate among certain persons and “others not otherwise provided for who, in my opinion have rendered service meriting consideration by the Testator”. The words “in my opinion” clearly conflicted with the words” by the Testator and the High Court held that, upon a consideration of the will as a whole, the testator intended to refer to the executor’s opinion. Thus the will was to be construed as if “in my opinion” read “in his opinion”.

This doctrine does not however allow the Court to receive extrinsic evidence directed to prove that words appearing in a will admitted to probate had been inserted by mistake: the mistake must appear on the face of the will when construed as a whole (with assistance of evidence of surrounding circumstances if ambiguity in the will justifies resort to such evidence).

7.4 Secondly, in considering whether to grant probate to the whole or part of an allegedly testamentary document the Probate Court can omit words or clauses which were not intended to be included by the testator. In this case extrinsic evidence is admissible to show that the instrument does not represent the testator’ s intentions and that words were inserted which were not known and approved by the testator.² Thus, a revocation clause has been excluded where there was clear evidence of the testator’s intention not to revoke an earlier instrument.³ Similarly, a particular word or group of words inserted through error can be omitted where it is clear that the testator did not intend the will to include such words and where the presence of those words alters the testator’s true intention.⁴ Under this jurisdiction, the court may omit words which the testator did not intend to be in the will at all, but cannot omit them simply because the testator misunderstood their effect (see also paras 7.7-7.8).

Limitations on Power to Correct

7.5 There are however at least four serious limitations upon the power of the court to correct testator’s mistakes. First, it is generally accepted that the court has no power to add or alter words when admitting a will to probate, even if there is clear evidence that the omission of the correct word or words was unintentional.⁵ One example of the irrationality of this limitation is that a legacy of “$50” which should have read “$500” cannot be corrected, whereas a legacy of “$500” which should have read “$50” can be altered by omission of the last “0”. Various reasons have been offered for this abnegation of a jurisdiction⁶ otherwise freely exercised in relation to transactions between living people, and none are satisfactory.⁷ It has been said that to assume jurisdiction to rectify a will would contravene the statutory requirement that wills be in writing⁸ yet rectification is available in relation to other instruments required by law to be in writing or under seal.⁹ Another reason put forward is that “the testator may have read his will in the actual form and have been satisfied with it”;¹⁰ but there is no irrebuttable presumption of knowledge and approval flowing from a testator having read the will before signing¹¹ and many documents apart from wills are rectified where there is clear evidence of a relevant error even though they were perused before execution. Despite these doctrinal criticisms, the rule is well-entrenched and we shall proceed on the basis that legislation is required if it needs to be changed.

7.6 A second limitation lies in the truncated manner in which the court will rectify mistakes by omitting words The Probate Division of the Supreme Court of New South Wales handles all proceedings relating to the validity of wills, whether or not such proceedings are contested. In the course of deciding whether all or part of a document represents the testator’s last “will” in the sense of being a document to which the testator freely assented, the court may have to interpret the document. But in exercising its “probate” jurisdiction, the court does not provide any binding interpretation of the will which is admitted to probate. If an executor is uncertain about the meaning of a clause in the will or if a dispute about such a matter arises between beneficiaries, such issues are determined in other, later proceedings.¹² Instances have occurred where words have been omitted from probate without there being a definitive interpretation of the remaining words, thus leaving open to disputation in later proceedings the proper construction of those portions of the document admitted to probate. Words inserted by mistake have been excised in circumstances where the probate court was conscious that it was thereby creating an ambiguity¹³ or leaving a disposition devoid of operation and content.¹⁴ This was done in the belief that a judge later called upon to construe the will might be able to interpret it in such a manner that the testator’s true intention can be given effect. In our view this shadow-play is a highly unsatisfactory manner of remedying a demonstrated error, particularly when it is borne in mind that the evidentiary rules relating to the interpretation of wills often operate to exclude evidence of mistake that was admissible at the probate stage.¹⁵

7.7 The third limitation is that where the error is a mistake of law or error in drafting being matters in which the draftsman was empowered by the testator to use his or her own judgment, the testator is bound by the mistake.¹⁶ One example is where the testator instructs his or her solicitor to draw a will containing a gift in favour of children and the solicitor uses the word “issue” in a context where it has its legal meaning of descendants. This limitation has worked harsh injustices.¹⁷

7.8 The fourth limitation on the court’s power to rectify by omitting words or phrases when admitting a will to probate, lies in the court’ s refusal to do this where the result would be to alter the sense of the remaining words.¹⁸ For example:

• In Re Horrocks¹⁹ a gift was made in favour of objects described as “charitable or benevolent”. The word “or” rendered the gift invalid because it was void for uncertainty and application was made to strike out the word. It is clear that a gift in favour of “charitable benevolent” or “charitable and benevolent” objects would have been valid. The application was rejected in that the word “benevolent” had been chosen by the testator’s draftsman, to whom she had committed the task of drafting the will and by whose choice of word she was in the circumstances bound, and the word “of’ could not be deleted without making the words “charitable” and “benevolent” qualify one another so that neither would then carry its full meaning.
• In Re Hemburrow²⁰ the testatrix’s intentions and instructions were to prepare a will including a clause: “I give.., the whole of my real estate and the residue of my personal estate” upon certain trusts. The words “the residue of my personal estate” were omitted by a clerical error and the will signed without the testatrix detecting the mistake. An application to admit the document to probate omitting the word “rear” from the clause in question was refused. One of the grounds of the decision was that even if the mistake were clear the court, by omitting the word “rear”, would be altering the sense of the testamentary document and remaking the will of the testatrix even though the omission of the word would have effectuated the testatrix’s actual intention.²¹

Whilst these cases are probably soundly based in terms of precedent,²² they have not escaped academic criticism.²³ They illustrate an unsatisfactory state of the law, where some slips are remediable and others not, depending upon the words chosen by a draftsman in purported compliance with the testator’s instructions.²⁴

7.9 Underlying much of the discussion in these cases is a firm conviction that very clear proof ought to be necessary before the terms of a will read by or to a testator and executed as his or her “last will” can be set aside. So great was the strength of the presumption of knowledge and approval flowing from such event that it was originally considered to be incapable of being displaced by contrary evidence, although it is now generally accepted that the presumption may be displaced if there is clear and compelling evidence.²⁵ One reason underlying this general approach is the concern that the admission of extrinsic evidence may result in drafts or deliberative documents overriding what were intended to be later and final expressions of a testator’s “will”. Another has been concern about the confusion and uncertainty that would arise from any different rule. It is in our view essential that the strength and limitations of such arguments should be recognised in any consideration of a change to the rule and the extent of such change.

II. REFORMS PROPOSED OR ENACTED ELSEWHERE

United Kingdom

7.10 Following an extensive review by the Lord Chancellor’s Law Reform Committee,²⁶ a recommendation that the equitable doctrine of rectification should be applied to wills, passed into law as s20 of the Administration of Justice Act 1982 (which came into operation on 1 January 1983). The key subsection provides:

20(1) If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence -

(a) of a clerical error, or

(b) of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.

Other subsections preclude application being made after six months from grant of probate, except with the permission of the court, and provide certain protection to executors from the operation of a rectification order. We shall discuss the effect of this provision below (paras 7.16-7.17).

Tasmania

7.11 The Law Reform Commission of Tasmania has made similar proposals, whilst stressing that only specific evidence (such as a written memorandum, draft will or typist’s copy) of the testator’s intentions should be admissible.²⁷

Queensland

7.12 The Queensland Law Reform Commission considered rectification of wills in its Report on The Law Relating to Succession (1978)²⁸ and recommended legislative reform which was enacted as s3 1(1) of the Succession Act 1981 (Qld).

31. Power of Court to rectify wills (1) As from the commencement of this Act the Court shall have the same jurisdiction to insert in the probate copy of a will material which was accidentally or inadvertently omitted from the will when it was made as it has hitherto exercised to omit from the probate copy of a will material which was accidentally or inadvertently inserted in the will when it was made.

Like the English Act there is a six month time limitation from date of local grant, subject to a power in the court to direct otherwise.²⁹

7.13 We do not favour the form of s31(1) of the Queensland Succession Act because arguably it imports the unreasonable limitations and qualifications of the existing jurisdiction to omit words, particularly the fourth limitation discussed at para 7.8. We could contemplate situations where the insertion of particular words would alter the sense of words in the will when executed. Rectification in such circumstances would probably be precluded by the continued operation of the law through cases such as Re Horrocks (para 7.8).³⁰

7.14 Each of the three Reports referred to recommended that rectification be available only where the substance of the wording intended by the testator can be clearly shown.³¹ Such a requirement is not spelt out in the English or Queensland enactments, although the word “map” presumably entitles the court to withhold any remedy if it is not clear what remedy is appropriate.

III. RECOMMENDATIONS

7.15 The sorry progression of judicial breast-beating about the inequity of the present rules³² and the reported instances where they have defeated testator’s intentions without apparently serving any useful function is clear evidence of a need for some reform in this area. How far should it go? Proper analysis requires various categories of mistakes³³ to be identified.

A. Categories of Mistakes

7.16 Section 20(1) of the Administration of Justice Act 1982 (UK) (para 7.10) offers the remedy of rectification in two specified situations, neither of which is defined. The first, “clerical error”, is probably confined to mistakes arising in the mechanical process of writing or transcribing.³⁴ It would include wills where a legacy wrongly read “$50” instead of “$500” (cf para 7.5) or where the wrong person is named as a beneficiary and, in each case, the error occurred in the course of reading the testator’s instructions or reducing them to written form. It would include such a slip whether made by the testator, the testator’s solicitor or a typist. It would also encompass a situation regularly encountered in the law reports where a husband and wife mistakenly sign the mirror-wills prepared for the other.³⁵

7.17 The second situation, “failure to understand the testator’s instructions”, is, as the Committee’s Report makes plain,³⁶ confined to the case where an adviser is interposed. eg where a solicitor was instructed to leave property to X but, failing to understand what the testator wanted, draws the will in such a way as to leave the property to Y. The “testator’s intention is apparently frustrated solely because his solicitor has failed to ascertain what it is”.³⁷

7.18 But the two situations specified in the English Act are not the only forms of mistake that occur in drafting wills. Should a statutory power of rectification go further? In our view it is possible to identify at least five further situations where mistake can vitiate the true intentions of a testator.³⁸

(a) where the testator, doing his or her own drafting fails to appreciate the legal effect of the words used. (For example the testator may use the expression “personal property” in a will that reveals no evidence of what he or she intended by that term. it will then be construed according to its legal meaning regardless of the testator’s actual belief on the matter).

(b) where the testator, using a (professional) adviser, communicates his or her instructions in such a way that the adviser understands them, and the adviser fails to appreciate the legal effect of the words he or she chooses to give effect to the instructions and the testator signs the will believing that the words chosen reflect in law his or her expressed instructions. (For example, the testator tells the solicitor that he or she wants a portion of the estate to pass to his or her children; and the solicitor (believing that he or she is giving effect to the instructions) chooses the word “issue” in a context where it has its legal meaning of descendants.³⁹

(c) where the testator’s will is uncertain as to what he or she meant, and his or her true intentions are unascertainable, even by resort to extrinsic evidence.

(d) where the testator’s will is uncertain as to what he or she meant, but, if extrinsic evidence is admissible, such uncertainty can be dispelled.

(e) where there is a vacuum in that the testator never had any intention relevant to the situation which actually occurred.

7.19 Categories (c) and (e) may be readily disposed of. If either “mistake” were to be remedied it would in effect involve the court in making the will for the testator. This would require the court to impute to the testator an intention which it cannot be shown that he or she in fact had. We do not suggest that the court be given power to intervene in such circumstances.

B. Possible Reforms

7.20 The United Kingdom Law Reform Committee considered categories (a) and (b) referred to in para 7.18 as a single type of mistake-situation.⁴⁰ The Committee recommended against the availability of rectification as an appropriate remedy “where it cannot be shown that the words of the will are not those which the testator meant to use, or intended to be used on his behalf. To go beyond that is to pass into the wider realm of the testator’s purpose”.⁴¹ It was pointed out that there can be no rectification of a contract if it correctly embodies the words agreed upon by the parties even if there were some misapprehension as to the meaning or effect of those words.⁴²

7.21 We disagree with this approach and are prepared to go further than the recommendations of the United Kingdom Committee. In our view the remedy of rectification ought to extend to established cases of mistake in both categories (a) and (b). There are already clearly established judicial restraints on the availability of rectification which are, in our view, a sufficient protection against fruitless and ill-conceived applications, or applications designed in effect to make a will for a testator whose own views cannot be clearly ascertained.

7.22 We consider that it is dangerous to analogise in this area from the law of contract. A bilateral arrangement such as a contract necessarily creates situations where an unexpressed reservation of a negotiating party may have to yield to the expressed statements of the parties.⁴³ A will on the other hand does not involve an element of negotiated bargain, but is rather intended to be the expression of the true intention of its maker.

7.23 It should be noted that, at least in the area of revocation clauses, there is a body of authority which holds that ignorance of the legal effect of a revocation clause is sufficient to save provisions which the testator did not in truth intend to revoke.⁴⁴ Consequently, the general application of this approach to all testamentary provisions would not be a dramatic leap.

7.24 Another relevant matter is that it is well established that a trust instrument such as a voluntary settlement may be rectified, even after the death of the settlor, where there is sufficiently clear evidence of a relevant mistake and of the true intentions of the settlor. Significantly for present purposes, it is also well established that the court may rectify the wording of a document so that it expresses the settlor’s true intention even where the words of the document were purposely used by someone who mistakenly considered that they bore a different meaning from their correct meaning as a matter of true construction.⁴⁵ This will apply whether or not the settlor used a professional intermediary, although circumstances will seldom arise where there is sufficiently clear evidence of a relevant mistake if the settlor (or for that matter testator) did his or her own drafting. One example of this jurisdiction is Kent v Brown.⁴⁶

A settlor instructed a solicitor to prepare a declaration of trust embodying the creation of certain absolute interests subject to various life estates. Because the document prepared by the solicitor and executed by the settlor omitted the technical words “and their heirs” after the relevant gift it was considered that the deed on its true construction gave merely life estates to the intended remaindermen. The settlor was dead but the court was satisfied as to the relevant mistake. It is clear that the settlor and his solicitor were ad idem as to the settlor’s intentions and that the court considered the error to be other than of a clerical or copying nature.⁴⁷ After a detailed review of the authorities Roper J ordered that the declaration of trust be rectified by inserting the words “and their heirs” in the appropriate place.

C. Our Recommendations

7.25 For the reasons stated in the preceding paragraphs, we do not favour restricting the power of rectification to the two categories mentioned in the English Act. The English provision has been criticised as unduly restrictive⁴⁸ and we see no reason why a jurisdiction exercised in relation to the miscued intentions of deceased settlors should not equally apply to wills. The existing law’s stringencies in relation to proof of circumstances giving rise to a right to rectification are an appropriate safeguard. No order would be able to be made unless there were clear evidence of what the testator’s intentions were, and this would meet the objections of those who would argue that the power would become a means whereby the court made wills for testators who had not made up their own minds. We recommend that rectification of a will should be available wherever the Court is satisfied that the will is so expressed that it fails to carry out the testator’ s intentions. Such a change may well engender some litigation However the old rules tended to encourage the court to make unnecessarily fine judicial distinctions rather than seek the proper discovery and implementation of the testator’s true intentions. One side-effect of our proposed reform (if adopted) would be the reduction in cases where a disappointed beneficiary sues the solicitor involved,⁴⁹ thereby removing the anomalous situation of the disappointed beneficiary proving as part of his or her case against the solicitor that someone else was not intended to be the beneficiary but being unable to prevent that person receiving the unintended gift.

7.26 We do not recommend that any particular rules be introduced as to standard of proof or the evidence admissible to prove relevant mistake. In our view the approach currently adopted by the equity court works satisfactorily. This requires that “convincing proof” must be advanced that the written document does not embody the final intention of the parties and that the omitted ingredient must be capable of proof in clear and precise terms.⁵⁰

7.27 We recommend the introduction of two ancillary provisions imposing a time limit on making applications for rectification and giving protection to executors.⁵¹

• There should be a time limit upon applications in order to give reasonable security to executors and beneficiaries and to exclude stale claims. Since it is likely that executors and beneficiaries would be in a position to perceive the existence of some problem shortly after the deceased’s death we suggest that the period should be eighteen months from the date of death, subject to a power in the Court to permit an extension for “sufficient cause”.⁵² This will permit if not encourage rectification proceedings to be brought concurrently with the application for probate, but will allow late claims, eg at the suit of disappointed beneficiaries who are ignorant of the existence of the will.
• Executors should also be protected if they distribute on the basis of the executed will subject to giving notices in the usual manner and form,⁵³ although the rights of a newly created beneficiary to recover on the basis of the rectified will from an overpaid beneficiary should be preserved.

7.28 In para 7.18 we referred to mistakes in category (d), where the testator’s will is uncertain as to what he or she meant but, if extrinsic evidence is admissible, such uncertainty can be dispelled. This raises a more difficult issue. Here the operative mistake is the creation of an unintentional ambiguity of expression which is capable of resolution if the court is free to look behind the will to extrinsic evidence. Whether the true object of interpretation of a will is to discover the meaning of the words used or the intention of the testator or something in between,⁵⁴ the courts have devised rules about when extrinsic evidence is available as an aid to construction There are several reasons why some limit should be placed on the availability of extrinsic evidence as an aid to interpretation.

• Some testators say different things to different people as to their; testamentary intentions or dispositions, whether out of malice, forgetfulness, confusion or the desire to placate a particular would-be beneficiary.
• A written will is designed to be the considered expression of testamentary intent whereas resort to material outside the words used runs the risk that the testator’s preliminary views may supplant his or her final instructions.
• Many technical words used commonly in wills (eg “issue”, “next of kin”) have acquired particular meanings leading to a probability that their use was intended to incorporate such meanings.

(a) establish the special meaning or significance which the testator was accustomed to attach to any word, name or expression used in the will; or

(b) establish as well as resolve any equivocation⁵⁹ in a will, notwithstanding that the ambiguity is not apparent on the face of the will.

In the construction of a will acts, facts and circumstances touching intention of the testator shall be considered and evidence of such acts, facts and circumstances shall be admitted accordingly but evidence of a statement by the testator declaring the intention to be effected or which had been effected by the will or any part thereof shall not be received in proof of the intention declared unless the statement would apart from this section be received in proof of the intention declared.

(1) This section applies to a will:

(a) in so far as any part of it is meaningless;

(b) in so far as the language used in any part of it is ambiguous on the face of it;

(c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.


(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator’ s intention, may be admitted to assist in its interpretation.

7.30 In our view the two reports amply demonstrate the need for some reform in this area. We incline to the view that the English legislation is a more appropriate model for New South Wales than the Victorian, particularly in the light of the broad remedy of rectification which we recommend in para 7.25. That remedy is, in our view, the better vehicle in which to allow the testator’s “true” intention to be sought at large outside the will itself. Whilst there is a need to allow greater resort to extrinsic evidence, including evidence of the testator's intention, than the present law allows in the interpretation of wills, the “pegs” provided in s21(1) of the English Act mean that the written will itself is the clear starting point in the quest for the testator’ s intentions.

7.31 Finally we would endorse the suggestion that it would be desirable if the Supreme Court Rules were framed so as to discourage the present practice of almost invariably separating probate hearings from proceedings involving the construction of wills.⁶⁰ Whilst the rules of evidence to be applied and the parties involved may differ, there will in our view be cases where it is appropriate that the probate court itself conclusively construe the will (particularly where there is a question about the need for rectification). Obviously there will be cases where it is inappropriate to raise issues of interpretation and join the necessary parties for such proceedings, because the will in question may not ultimately be admitted to probate. But in other cases it would be convenient to allow construction issues to be raised and determined concurrently with the probate issues or at a later stage in a single probate-construction proceeding We therefore recommend that the Supreme Court Rules should provide that a claim relating to the validity of a will and other claims (including claims for the rectification or interpretation of a will) may be joined in the one proceeding unless it would cause undue inconvenience or cost.

1. Key v Key (1853) 4 DeG M & G73 at 84-85 (43 ER 435 at 439): Tatham v Huxtable (1950) 81 CLR 639 at 645,651.

2. See, generally Hardingham, Neave & Ford. Wills and Intestacy in Australia and New Zealand (1983) para 316; Theobald on Wills 14th ed pp38-39; Re Fenwick [1972] VR 646 at 651. Naturally, this power to refuse probate of the whole or part of a will extends to wills affected by fraud.

3. See eg Re Phelan [1972] Fain 33; Re Luck [1977] WAR 148.

4. See eg Re Bryden [1975] Qd R 210 (solicitor’s mistake in dictation): Perpetual Trustee Co v Williamson (1929) 29 SR (NSW) 487 at 490 (draftsman misread testator s handwritten instructions): Re Morris [1971] P 62 (draftsman’s slip led to revocation of clauses in earlier will not intended to be touched): Re Reynette-James [1976] 1 WLR 161 (typists error).

5. See cases cited in Theobald, note 2 above, p38 n76: Tatham v Huxtable (1950) 81 CLR639 at 651. Cf Re Tait [1957] VR 405.

6. The jurisdiction to rectify wills by inserting words was exercised before the passing of the Wills Act 1837: see Fawcett v Jones (1810) 3 Phill 434 (161 ER 1375) (including argument of counsel): Harter v Harter (1873) LR 3 P& D 11 at 14, 19.

7. The Lord Chancellor’s Law Reform Committee which considered the topic of rectification of wills reviewed the stated reasons and concluded that it was ”unable to discover any satisfactory reason for holding that the doctrine of rectification should not apply to wills”: Interpretation of Wills (1973) Cmnd 5301 para 10.

8. Earl of Newburgh v Countess Dowager of Newburgh (1820) 5 Madd 364 at 365 (56 ER 934 at 935): Harter v Harter (1873) LR 3 P & D 11 at 17.

9. As to the rectification of inter vivos transactions required by law to be in writing. see Craddock v Hunt [1923] 2 Ch 136 and United States of Australia v Motor Trucks Ltd [1924] AC 196.

10. Re Bywater (1881) 18 Ch D 17 at 22.

11. Re Morris [1971] P 62: Re Fenwick [1972] VR 646.

12. One reason for this division of jurisdiction is that the parties to probate proceedings may not be the same as the parties to construction proceedings.

13. Eg In Goods of Walkley (1893) 69 LT 419.

14. Re Morris [1971] P62.

15. Hardingham, Neave and Ford. note 2 above, para 1101.

16. In the Estate of Beech [1923] P46: Perpetual Trustee Co v Williamson (1929) 29 SR(NSW) 487: Re Horrocks [1939] p 198 at 216: Osborne v Smith (1960) 105 CLR 153 at 159.

17. See eg Collins v Elstone [1893] P 1 (testatrix who wished to revoke one provision in earlier will was misinformed by her draftsman as to the effect of a general revocation clause and executed a will containing such a clause: held. that the testatrix must be taken to have known and approved of the words of revocation chosen): and Re Walker (deceased) [1973] 1 NZLR 449. For a criticism of Collins Elstone on a narrower ground. namely that it failed to apply generally accepted principles requiring proof of actual intent to revoke. see Geddes and Rowland. Revocation by later will relevance and proof of intention (1984) 58 ALJ 186 at pp 187-8.

18. Ebert v The Union Trustee Company of Australia Ltd (1960) 104 CLR 346 at 351; Osborne v Smith (1960) 105 CLR 153 at 159-162: Re Horrocks [1939] P 198. Cf Re Morris [1971] P 62.

19. [1939] P 198. The decision is strongly criticised by Lee, Correcting Testators’ Mistakes: The Probate Jurisdiction (1969) 33 Conveyancer 322 at pp329-334. The particular gift would now be saved in New South Wales by s370 of the Conveyancing Act, 1919.

20. [1969] VR 764.

21. Id, at 765-766. See also Harter v Harter (1873) LR3 P& D 11 and cf Re Cogan (1912) 31 NZLR 1204.

22. Cf Re Morris [1971] P62 at 79-81.

23. See Hardingham, Neave and Ford. note 2 above. Pp 72-73, 77-83: Lee. Correcting Testators’ Mistakes: The Probate Jurisdiction (1969)33 Coneeyancer 322: Maxton, Rectification of Wills: A Case for Reform (1984) NZLJ 142. American law reflects a similar pattern, although there are some recent signs of change. The traditional reluctance to rectify and its stated rationale is soundly criticised by Langbein & Waggoner, Reformation of Wills on the Ground of Mistake: Change of Direction in American Law? (1982) 130 U Penn LR 521.

24. An eminent authority in this field described the leading Australian Case, Osborne e Smith (1960) 105 CLR 153 as concluding that “as a mere omission could not result in an instrument which gave effect to the testatrix’ s intentions, the court could only refuse probate of the whole and the deceased died intestate. In the result, there was in existence a duly executed instrument and clear findings as to what was really intended. but nothing was admitted to probate”. See F C Hutley QC later Hutley JA. in Reconstruction of the Law of Succession (1973) 15 Journal of the India Law Institute p428.

25. See, generally Hardingham, The Jurisdiction of Courts of Probate to Rectify Errors in Wills (1972) 46 ALJ 221 at pp 221-226.

26. Note 7 above.

27. Report on Reform in the Law of Wills, (1983), Report No 35, p12.

28. (1978), QLRC 22, pp19-20.

29. Succession Act 1981, s3 1(2).

30. [1939] P198.

31. United Kingdom Report, note 7 above, para 25: Tasmanian Report, note 27 above. p12; Queensland Report, note 28 above, p20.

32. Eg Re Morris [1971] P62 at 82; Re Reynette James [1975] 3 All ER 1037 at 1043.

33. Cf the analysis of the Lord Chancellor’s Law Reform Committee, note 7 above, pp 8-11.

34. See The Queen v Commissioner of Patents; Ex parte Martin (i953) 89 CLR 381 at 406.

35. See Hardingham, Neave & Ford. note 2 above. p76.

36. Note 7 above. paras 20-22.

37. Id. para 21.

38. Cf the Lord Chancellor’s Law Reform Committee, note 7 above. paras 18, 22-25. Our discussion draws substantially upon the material in these paragraphs, although there are some differences in our conclusions.

39. Sec para 7.7.

40. Note 7 above para 22.

41. Id, para 23.

42. Id, para 25, citing Frederick E Rose (London) Ltd v William H Pim Jnr & Co Ltd [1953] 2 QB 450.

43. Taylor v Johnson (1983) 151 CLR 422 at 428-430.

44. The authorities are not uniform but the statement in the text represents the weight of modern authority see Ceddes & Rowland. Revocation by later will: relevance and proof of intention (1984) 58 ALJ 186 at pp 187-189.

45. Re Butlins Settlement [1976] 1 Ch 250 at 260-1. See also, Langbein & Waggoner, note 23 above at pp525-6.

46. (1942) 43 SR(NSW) 124. An appeal to the High Court was dismissed: see 66 CLR 670.

47. See 41 SR(NSW) at 126.

48. Mithani, Rectification of Wills (1983) Law Societys Gazette 2589; Maxton, op cit, note 23 above.

49. For a review of the cases, see C Bates, Liability of Solicitors for Negligence to Beneficiaries under a Will (1985) 59 ALJ 327. The argument that the existing reluctance to rectify leads to the unjust enrichment of unintended beneficiaries is persuasively advanced by Langbein & Waggoner. loc cit, note 23 above.

50. Joscelyn v Nissen [1970] 2 QB 86; Pokallus e Cameron (1982) 43 ALR 243 at 247.

51. Cf United Kingdom Administration of Justice Act 1982, section 20(2)and (3). In this context “executor” includes a person to whom letters of administration cta have been granted.

52 Cf Family Provision Act, 1982, s16(3). Note that in the English Act the period of six months dates from when representation is first taken out.

53. Cf Wills Probate & Administration Act, 1898, s92 and Family Provision Act, 1982, s35(1).

54. See authorities cited in Hardingham, Neave & Ford. note 2 above, para 255 n 14.

55. For such a discussion, see Hardingham, Neave & Ford. note 2 above. chapter 11 and the Nineteenth Report of the Lord Chancellor’s Law Reform Committee on Interpretation of Wills, Cmnd 5301.

56. Note 55.

57. First Report Concerning the Construction of Wills (1978). For a general discussion of the Victorian position, see IJ Hardiogham. Reading a will in context s22A of the Wills Act (1984) Law Institute Journal 91.

58. At present direct evidence of the testator’s dispositive intention is only receivable in cases of equivocation: Re Cullen [1946] VLR 47. This exception is preserved by s22A(1) of the Victorian Wills Act.

59. An equivocation exists if a description of an object or subject in a will is applicable to two or more persons or things: Theobald on Wills 14th ed p214.

60. See Hardingham, note 25 above at p234. There is English authority that the decision of the probate court is not binding upon the Chancery Division in relation to a matter of construction, Re Hawksley’s Settlement [1934] Ch 384.