Rose v Tomkins & Ors

[2017] QCA 157

Queensland Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Making of a will
3. › Statutory power of rectification
4. › Will not giving effect to testator's instructions
5. › Whether will carried out testator's intentions
6. › Whether clear and convincing proof that will did not give effect to instructions
7. › Succession Act 1981 (Qld), s 33
1. Succession
2. › Making of a will
3. › Statutory power of rectification
4. › Principles governing rectification under s 33(1)(b)
5. › Ascertainment of testator's actual intention from instructions
6. › Comparison of will as properly construed with testator's instructions
7. › Standard of proof

Quick Take

When assessing whether a will gives effect to a testator's instructions under s 33(1)(b) of the Succession Act 1981 (Qld), the court must compare the will as drafted with the testator's actual instructions, not with what the will might achieve under contingent circumstances (such as the possibility that another person's will mirrors the testator's). A will that only achieves the testator's intended result in one possible scenario does not give effect to the testator's instructions where those instructions were unqualified.