Lawler v Herd (as executor of the estate of John Baird Torrance, deceased)

[2010] QSC 281

Supreme Court of Queensland

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Interrogate

Catchwords

1. Succession
2. › Wills, probate and administration
3. › Rectification of will
4. › Statutory power to rectify will to reflect testamentary intentions
5. › Whether will failed to give effect to testator's instructions
6. › Need to demonstrate both that will did not give effect to intentions and what those intentions were
7. › Succession Act 1981 (Qld), s 33
1. Succession
2. › Wills, probate and administration
3. › Construction and effect of testamentary dispositions
4. › General principles of construction
5. › Admissibility of extrinsic evidence
6. › Whether language of will ambiguous on its face or in light of surrounding circumstances
7. › Distinction between meaninglessness and pointlessness
8. › Succession Act 1981 (Qld), s 33C

Quick Take

An applicant for rectification of a will under s 33 of the Succession Act 1981 (Qld) must demonstrate both that the will does not give effect to the testator's intentions and what those intentions were; if the court cannot determine the actual intention, rectification is unavailable. A will provision that is legally pointless but has only one meaning is not 'ambiguous' for the purposes of s 33C, and extrinsic evidence of intention is therefore inadmissible.