Hinds v Collins

[2005] QSC 362

Supreme Court of Queensland

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Interrogate

Catchwords

1. Succession
2. › Wills, Probate and Administration
3. › Rectification of wills
4. › Power of court to insert omitted material in probate copy
5. › Whether rectification order may be made prior to grant of probate
6. › Conditional order that probate copy be rectified if will admitted to probate
7. › Succession Act 1981 (Qld), s 31
1. Succession
2. › Wills, Probate and Administration
3. › Rectification of wills
4. › Proof of testator's intention
5. › Burden of proof
6. › Whether presumption from due execution rebutted
7. › Solicitor's evidence of instructions
8. › Whether executor required to call all available witnesses
1. Evidence
2. › Witnesses
3. › Failure to call available witness
4. › Whether failure to call witness fatal to application
5. › Duty of executor to place all relevant information before court

Quick Take

Section 31 of the Succession Act 1981 (Qld) permits a conditional rectification order prior to probate — an order that the probate copy be rectified if and when the will is admitted to probate. An executor seeking rectification is not required as a rule to call every available witness; the ultimate question is whether the balance of probabilities standard is met. The relevant inquiry in rectification is the testator's intention as to what words should appear in the will, not the testator's intention as to the effect of the will.