The Court rectified a will under s 31 of the Wills Act 1997 (Vic) where two testamentary trusts cross-referred to each other upon termination, creating a circularity that left no mechanism for distributing the corpus after the death of all beneficiaries. The Court held that instructions recorded in a solicitor's questionnaire for an earlier will (2011) constituted clear and convincing evidence of the testator's intention for the final will (2018), where the 2018 will merely updated beneficiaries and otherwise adopted the 2011 will's structure. An extension of time under s 31(3) was granted despite the plaintiff executor being the drafter of the defective will, on the basis that the delay was relatively short, no distribution had occurred, and no prejudice arose.
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