Section 33(1) of the Succession Act 1981(QLD) enables the court to rectify a will if it is satisfied that it does not carry out the testator’s intentions because-
(a) a clerical error was made; or
(b) the will does not give effect to the testator’s instructions.”
Having ascertained the testator’s instructions, if there is a discrepancy between the will as it is construed by the court and its effect, an order may be made that the will be remedied so that it reflects the testator’s ‘intentions’.
The background
Michael John Perry instructed an Australian solicitor to draft a Will (“the Australian will”) that was executed on 10 October 2019, which left the residue of his estate after administration to his partner Pathichaya Yotchutuukan and daughter Chayanud.
Clause 1 of the Australian will provided:
“I hereby revoke all former wills and testamentary dispositions previously made by me and declare this to be my last will and testament.”
However, Michael had made a will that dealt specifically with his property in Thailand on the 13th of September 2018 leaving a condominium to Chayanud with the residue of his estate to Pathichaya – who owned a home that Michael had bought for her.
Additionally, on the 21st of September 2018, Michael made a will that dealt specifically with his UK property providing a life interest in the Perry family home and money in a bank account held on trust for Micheal’s handicapped brother, Barry, with the remainder to go to Michael’s siblings that survive Barry.
In his instructions to his Australian solicitor, Micheal listed only his Australian assets and, made no mention of his UK and Thai assets. However now that Michael is deceased, it would appear that he did not intend to revoke the wills relating to the assets he held in the United Kingdom and Thailand.
Rectification
The unintended effect of the Australian will is the revocation of the UK and Thai Wills, resulting in a material change to the intended disposition of the deceased’s international assets; more concerning is that it would deprive Barry of his life estate and financial support. Additionally, it would deprive his siblings in due course of their interest in their family’s home.
There is no evidence Micheal instructed that his UK and Thai wills should be revoked. Micheal’s solicitor did not correct his lay impression that his Australian will would only revoke his earlier Australian will because she was unaware of the assets subject to the UK and Thai wills.
It is clear that in making the Australian will, the deceased intended that the UK and Thai wills would remain in place to regulate the distribution of his property in the United Kingdom and Thailand.
Court order
Michaels actual intention that his Australian will would not affect his UK and Thai wills construed in light of his lay misconception and unbeknown to the lawyer drafting the revocation clause did not give effect to those instructions. Therefore the court was satisfied the will did not carry out the testator’s intentions because it did not give effect to his instructions.
The Court ordered the will of Michael John Perry of 10 October 2019 be rectified by adding the words “except for my wills of 13 September 2018 and 21 September 2018” to cl 1 following the words “previously made by me”.
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