Morrison and Philippides JJA and Flanagan J
The testatrix, Ms Julia Mary Jones, deceased, was in a de-facto relationship with Mr Bevan Warren Tomkins, the first respondent, who both had their own respective children from a previous marriage, the second and third respondents. Both the testatrix and her partner gave instructions that their respective halves in their residential home be pass to their respective children. Relatedly, a transfer document severing the joint tenancy was executed in April 2015.
Subsequently, an application sought to alter the effect of clauses in Ms Jones’ will. As to the alterations, the primary judge stated:
 If, as I infer, Mr Tomkins’ will was in the same terms as Ms Jones’ will, then Ms Jones’ instructions that when both she and Mr Tomkins died one half share of the home would pass to her children and one half share of the home would pass to his children were effectuated. In these circumstances I do not consider that either of the statutory conditions for rectifying this will have arisen. There was certainly no clerical error, and it seems to me that the wills did give effect to the testator’s instructions.
The primary judge inferred that the testatrix’s partner’s will was in mirror terms as her own. The primary judge held that the effect of both wills, as read together, gave effect to the testators’ intentions.
Grounds of Appeal
The grounds of appeal are that the primary judge erred in finding that:
- The testatrix’s instructions were effectuated;
- It was necessary for the wills to be mutual wills in order for the deceased’s instructions to be carried out; and
- The Will as drafted was capable of achieving the deceased’s instructions that her half-share of the house pass to her children
Submissions of the Appellant
The appellant submitted that it was not necessary for the wills to be mutual wills to effect the deceased’s instructions. It was argued that the deceased’s actual intention must be looked at and whether the will reflects those instructions.
Section 33 of the Succession Act 1981 (Qld) provides:
33 Court may rectify a will
(1) The court may make an order to rectify a will to carry out the intentions of the testator 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 does not give effect to the testator’s instructions.
As summarised by Philippides JA, the legal principles in relation to the rectification power in s 33(1)(b) of the Act are:
(a) The Court must ascertain the testator’s intention, that is, the actual intention of the testator reflected in the instructions given by the testator, not what would probably have been the intention in the circumstances that eventuated;
(b) The Court must construe the provision of the will sought to be rectified;
(c) The Court is required to compare the relevant provision of the will properly construed with the testator’s intention as ascertained;
(d) The Court must be satisfied the relevant provision of the will does not carry out the testator’s intentions because it does not give effect to the testator’s instructions and that rectification in the terms sought would give effect to those instructions; and
(e) The Court must be so satisfied on the balance of probabilities, on clear and convincing proof.
Her honour went on to state:
 There was nothing in the instructions given by Ms Jones to indicate that her intention was to do more than ensure that her half-share went to her children. There is thus no evidence that Ms Jones intended by her Will to do more than ensure that her own children inherited her half-share in the house. Certainly, there were no instructions given that Ms Jones and her partner wanted to put in place mutual wills…
 Importantly, the fact that both Ms Jones and Mr Tomkins wished their respective children to inherit their half interest does not lead to the conclusion that each intended by their will to protect and guarantee the inheritance of the other’s children. They were primarily concerned with ensuring that their interest went to their respective children. The implicit intention from the instructions given by Ms Jones was that she was concerned that her own children did not face uncertainty. There is nothing to indicate she was concerned by her will to ensure that the children of her partner also did not face uncertainty. Ms Jones’ instructions were not that she wanted by her will to provide for the children of Mr Tomkins.
 In the circumstances of the present case, the Will did not carry out Ms Jones’ intentions because it did not give effect to her instructions that her half interest go to her children. The Will was only capable of achieving the result that her children received a half interest in the event that her partner’s will was (and remained) in the same terms. The Will as drafted was not capable of guaranteeing that a half interest pass to them. But it is evident that Ms Jones’ instructions were to safeguard her children’s inheritance without qualification. That is consistent with the advice given to her by her solicitor to sever the joint tenancy.
 Just as there is clear and convincing proof that the Will did not give effect to Ms Jones’ instructions, likewise it can be said that rectification in the terms sought would give effect to those instructions.
The rectification of the will was allowed and the respondents were ordered to pay the appellant’s costs of and incidental to the appeal, limited by a granted certificate.
David Cormack – Brisbane Barrister & Mediator