This case was a combined will construction and will rectification application. This procedure is fairly common since the amendments to the Succession Act which were discussed in Public Trustee v Smith [2008] QSC 339; [2009] 1 Qd R 26. The commonality is the availability, subject to the terms of the relevant section, of extrinsic evidence to construe the will which can also be used to support a rectification application based on the criterion that the will does not give effect to the testator’s instructions.
In this case the solicitor was instructed to draw a will which left the testator’s then ‘home’ to a nominated beneficiary. The solicitor attempted to ‘future proof’ the will against future sale or disposal of the property in question and drafted a clause which would leave any ‘real estate’ held by the testator at the date of his death to this particular beneficiary. In attempting to avoid one pitfall (i.e. an ademption) both the solicitor and the testator fell into another pitfall which was not discovered until it was too late, because the ‘home’ in question was part of a golf course development and his interest was not technically ‘real property’ as it was a species of licence.
The case deals extensively with the evidentiary issues relating to rectfication and construction, including a discussion as to whether statements post-execution can be used to rebut the presumption of knowledge and approval.
Robert Whiteford, Dan Morgan and Lee Nevison appeared as counsel in the case.
The reasons of Lyons SJA can be accessed here.