› Clerical error — omission of beneficiaries during transcription
Succession law
› Wills
› Testator's instructions — will not giving effect to instructions
Evidence
› Extrinsic evidence
› Post-execution statements of testator as to testamentary intention
Quick Take
1Under s 31 of the Wills Act 1997 (Vic), the magnitude of an omission from a will — even one comprising 75 words and an entire tier of beneficiaries — does not preclude a finding of clerical error; 'clerical error' is to be given a wide meaning encompassing mistakes arising from routine office work such as document preparation.
2Statements made by a testator both before and after execution of a will are admissible as evidence of the testator's intention at the time of execution for the purposes of a rectification application, following Chan v Valmorbida [2019] VSC 336 and Rawack v Spicer [2002] NSWSC 849.
3Where a drafting solicitor and clerk lack independent recollection of the preparation of a will, evidence of their established usual practice — particularly as to how instructions to exclude beneficiaries are recorded — may, together with other evidence of testamentary intention, provide clear and convincing proof sufficient to satisfy the Briginshaw standard for rectification.
