Geoff Metamanos and his fiancee Julie Wilstonton lost their lives along with three others in a tragic helicopter crash off Anna Bay on the NSW North Coast on 6 September 2019.

Julie’s remains have not been recovered, so it has not been possible to determine which of them died first. But having died in the same event on the same day, Julie – the elder of the pair – is presumed having regard to legislation in both NSW and QLD, to have died first

Courts have power to order rectification of wills to correct errors to give effect to a will-maker's intention Geoff and Julie lived in NSW and made their Wills together in February 2010, instructing a Sydney law firm to prepare them.

Geoff’s Will appointed Julie as his executor and left everything to her. If she were to pre-decease him, his estate was to go to his mother, father and sister (clause 6) with his mother Sandra being appointed executor in Julie’s place (clause 4).

That clause – which also operated to express which prior Will clauses were to be replaced – was however defective. It referred only to the executor appointment (clause 2) and did not expressly state that the clause leaving his estate to Julie (clause 3) ceased – in such circumstances – to be of effect.

Sandra applied to the Queensland Supreme Court seeking rectification of such error so that Geoff’s intentions could be fulfilled, ie that that clauses 2 and 3 – not just clause 2 – were to be replaced in such circumstances to allow clause 6 to operate.

Geoff’s father Michael did not oppose the application that came before Justice Susan Brown in the Supreme Court at Brisbane. Julie’s estate had no interest in the matter before the Court.

The first question for Her Honour to consider was which law to follow, ie that of NSW or QLD.

Although the application was made in Queensland, Probate was granted in Queensland and there was estate property in Queensland, Justice Brown held that the proper laws to apply here were those of New South Wales because Geoff lived and died in NSW and importantly, made his Will there.

She noted that Geoff could have intended the laws of another jurisdiction to apply by stating so in his Will, but as he did not and had referred to NSW legislation in his Will, it should be concluded that he in fact intended New South Wales law to apply.

The law regarding rectification of a Will in NSW is set out in section 27 of the Succession Act 2006 (NSW) which states that:

(1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator’s intentions because:

(a) a clerical error was made, or

(b) the will does not give effect to the testator’s  instructions.

It is worthwhile to note that the equivalent law in Queensland is almost identical the only significant difference is the time limit that applies in Queensland is 6 months while in NSW it is 12 months.

Her Honour observed she would have arrived at the same outcome had she applied the Queensland law in section 33 of the Succession Act 1981 (Qld).

The substantial issue for Justice Brown to decide was whether or not the Will as drafted carried out Geoff’s intentions. The onus was on Sandra to prove on the balance of probabilities that it did not and in doing so to displace the presumption that Geoff knew and approved of the Will as actually drafted and signed.

The solicitor who prepared the Will swore in an affidavit that the omission of the words “and clause 3” were intended by Geoff to have been included but were omitted most likely due to a clerical error by his staff, that he did not pick up when reviewing the Will.

Such evidence was compelling.

Justice Brown therefore held that the Will did not carry out Geoff’s intentions due to either the clerical error made or that it did not give effect to what he told his solicitor he wanted.

She ordered that clause 4 of the will be amended to replace the words “Clause 2” with the words “Clauses 2 and 3”.

The Court also granted an extension of time for Sandra to file the application after the expiration of the 12 months time limit as the estate had not been distributed and there was no evidence of prejudice to any person.

Had more care been taken to ensure all intended words had been included, this Court application could have been avoided. The decision is nevertheless instructive as to the court’s power to correct such errors and give effect to how the will maker intended to distribute their estate.

Doe v Doe [2021] QSC 185 Brown J, 5 August 2021