Dino Cudia died on 29 March 2019; he was predeceased by his wife Lorraine, who had died on 29 July 2008. Dino had two children with Lorraine – Santina (the executor) and Andreas and three children from a prior marriage, Dean Maynard, Simon Maynard, and Adam Maynard (‘defendants’).

Mutual Will

Dino made a will on 18 June 2004 (‘will’) under a mutual will agreement (‘mutual will agreement’) with Lorraine, executed on the same day and prepared by a solicitor.

The solicitor explained to Dino and Lorraine that, when the first of them died, the mutual will agreement created a trust that had to be honoured by the survivor, and that the entire estate would eventually go to Andreas and Santina.

The solicitor gave evidence that when drafting the wills he took it upon himself to refer to Dino and Lorraine’s children and not to Andreas and Santina specifically and the reference to “my children” in the will was made in ignorance of the existence of the defendants.

Section 31 of t the Wills Act 1997(Vic) (‘Act’), provides that 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 do not give effect to the testator’s instructions it may make an order to rectify a will to carry out the intentions of the testator.

The application

Santina submitted that, if the will was not rectified, the effect would be that Dino and Lorraine’s estate would pass to different beneficiaries depending upon who died first in direct conflict with the expressed intention of the mutual will agreement.

Sabrina made an application to the Court to :

(a)add the words “Santina Giuseppina Trigazis (formerly Cudia) and Andreas Cudia” after the words “my children” at clause 3(c) and

(b) delete the words “my children” and replacing them with the words “my said children Santina Giuseppina Trigazis (formerly Cudia) and Andreas Cudia” at clause 4,

Santina’s application for rectification was made within time. Similarly, the defendants consented to Santina’s application to rectify the will, subject to their costs being reserved.

The decision

In granting the application the Court accepted the solicitor’s evidence that Dino and Lorraine intended that, upon their deaths, their entire estates would pass to Santina and Andreas, and that the reference to “my children” in the will was made in ignorance of the existence of the defendants.

The Court held Dino had not discussed his testamentary intentions with the defendants, and they were not involved in the preparation of the wills. Additionally, following the end of Dino’s first marriage, he didn’t have a close relationship with the defendants, and their stepfather raised them as if he were their father.

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