Mirror Will rectification part 2

Eliane Lucie Daly and her husband, Henri Georges Daly lived in New Caledonia. On May 2003 they attended the office of their solicitor who had prepared wills for each of them to sign concerning their property in Australia. The terms of these wills mirrored each other as follows

1. I REVOKE all former Wills and Testamentary Dispositions made by me in so far as any such Will or testamentary disposition relates to any of my assets situate in Australia.
2. I APPOINT my sons MICHAEL JAMES DALY, AND JACQUES HENRI DALY to be the executors and trustees of this my Will.
3. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and situate in Australia to my wife ELIANE LUCIE DALY.
4. IN THE EVENT of my said wife predeceasing me or failing to survive me for a period of thirty (30) days I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and situate in Australia to my sons MICHAEL JAMES DALY and JACQUES HENRI DALY in equal shares as tenants in common.
5. IN THE EVENT of either of my sons MICHAEL JAMES DALY or JACQUES HENRI DALY predeceasing me or [failing] to survive me for a period of thirty (30) days, I GIVE DEVISE AND BEQUEATH the share of my estate to which he would otherwise have been entitled to my trustees in trust for that son’s children as tenants in common in equal shares and share alike upon their attaining the age of twenty-one (21) years.

Henri died in August 2007. Eliane died in May 2010. Their sons Michael and Jacques sought probate of their mother’s will. She died leaving property in New South Wales. As happens from time to time Elaine signed the will prepared for execution by Henri and Henri signed the Will prepared for execution by Eliane.

Michael and Jacques sought an order under the Succession Act for rectification of the document signed by Eliane and Henri to conform to the will they had intended to sign.

They submitted to the court that the deceased never intended the paper she signed to be her will, but intended to put her signature on a different document. Therefore under s27 of the Succession Act the court should treat her signature as her will and then rectify the contents of the piece of paper she signed.

The court disagreed with this course of action believing that this was artificial as the appropriate course of action was to admit to probate the document Eliane intended to be her will pursuant to s 8 of the Succession Act. The premise for s27 is a valid will, which there would not be in the absence of an order under s 8.

The court held that there can only be an order for rectification if there is first a will. If no order were made under s 8, the document the executors claim to be Eliane’s last will, but not signed by her, could not be rectified by omitting the signature of Henri and deeming the document to have been signed by Eliane because it would never have been a valid will.