Legal Hypothetical: Court application to rectify error in Will

WHEN Daniel meets Ruth, he has two children from a previous relationship.

Daniel and Ruth purchase a vacant block and build their dream home.

They own their home as tenants-in-common.

They have two children together and they reside in the home for several decades.

Daniel wishes to ensure that upon his death, Ruth is able to reside in their home and when she passes away, their children receive the home.

He wishes for all of his children to ultimately receive an equal share of the rest of his estate.

Daniel sees a solicitor and a will is executed, providing Ruth with a right to reside in his “half” of the home.

The will gifts the rest of his estate to all of his children but unfortunately, the will fails to make a distinction between the children in relation to their home.

When Daniel passes away, the error is discovered.

Ruth seeks advice from a different solicitor and as part of the application to obtain a grant of probate, orders are sought, rectifying the will on the basis that it does not give effect to Daniel’s instructions.

The solicitor who prepared a Will, acknowledges the error in an affidavit filed with the Court.

The affidavit states that it was Daniel’s intention that his half of the home would ultimately only pass to the children of his second relationship.

Unfortunately, Daniel’s other children did not consent to the application and a “process server” was retained to “serve” these children with the Summons and the supporting affidavits.

The Court was reluctant to make the orders in the absence of consent from the “affected beneficiaries” and the matter was the subject of delay and additional costs.

Fortunately, the Court ultimately made orders rectifying the will.

This case demonstrates the importance of obtaining specialist legal advice when making wills and when navigating difficult issues which can arise during the administration of estates.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at or call him on (02) 66 487 487.

This column is only accurate at today’s date and is not legal advice.

By Manny WOOD, Solicitor

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