Will kit, rectification, intestate, removal of executor

In Queensland s 33(1) of the Succession Act 1981 provides that the court may make an order to rectify a will if it is satisfied that the document does not carry out the testator’s intentions due to a clerical error, or does not give effect to the testator’s instruction.


Trevor William McMahon ( the testator) died on 18 August 2021. The testator prepared his last will by filling in a will form dated 22 July 2021 (the will) There has been no grant of probate or letters of administration.

Clause 1 of the will revoked all previous wills and testamentary dispositions.

Clause 2 of the will appoints Michelle Ochea (”the applicant”) as executor of the will and trustee of the deceased estate. At the time the testator executed the will, he and the applicant had been in a domestic relationship for approximately 13 years. They were married on 16 August 2021.

Neither clause 4 nor 5 of the will names a beneficiary; these clauses are the subject of the rectification application. The applicant must establish the testator’s intention concerning the clauses to be rectified.

Extension of time

The applicant filed the originating application outside the period of six months from the testator’s death prescribed by s 33(2) of the Act.

The applicant submitted that it was appropriate to extend the time for making the application under s 33(3) of the Act as the second respondent has brought a family provision claim against the estate in the District Court. The outcome of the applicant’s rectification application is likely to impact the parties’ positions in `that family provision proceeding.

The court accepted that it was appropriate to extend the time for the applicant’s rectification application as the final distribution of the estate had not been made and the respondents did not oppose the extension of time.

The applicant

The applicant sought orders under s 33 of the Succession Act 1981 (Qld) (the Act) for rectification of the will and a grant of probate of the rectified will.

Alternatively, an order under s 18 of the Act that a statutory declaration sworn by the testator on 10 March 2016 is his last will.

The alternative claim for relief was abandoned as no party disputed the validity of the will made on 22 July 2021.

The respondents

The first and second respondents are adult children of the testator’s earlier marriage.

The first respondent – supported by the second respondent – sought a declaration that the estate be distributed under the rules of intestacy; that the applicant be passed over as executor of the will; that he be granted letters of administration with the will annexed.


Rectification under s 33(1) requires that the court be satisfied that the will does not carry out the testator’s intentions based on either

  • a clerical error was made or
  • the will does not give effect to the testator’s instructions

The effect of the rectification would be to bequeath the whole of the estate to the applicant. The applicant submits that this was the testator’s intention when executing the will and that the will as executed fails to give effect to that intention.

Clerical error

A clerical error may occur when someone writes something in the will that they did not intend to insert or omits something which they intended to insert. The introduction of a clause that is inconsistent with the testator’s intentions in circumstances in which the person drafting the will fails to apply his or her mind to its significance or effect may also be a clerical error.

What must be shown is the actual intention, not what the intention probably would have been had the testator thought about the matter.

Rose v Tomkins [2017] QCA 157 at [35]


As the testator prepared the will himself he gave no instructions as to the content of the will.

Instructions are, of their nature, communicated by one person to another with a view to compliance or obedience by that other person. It seems to follow that s 27(1)(b) cannot apply to a will composed and written by the testator personally.

Vescio v Bannister [2010] NSWSC 1274 at [12].

In dismissing the application to rectify the Will the court held that there was no evidence to support the intention that when the testator executed the will he intended to leave his entire estate to the applicant. Accordingly, the court has no power to make an order to rectify the will in the terms sought by the applicant.

The applicant accepted that if the will was not rectified then the rules on intestacy would apply and she will seek greater provision from the estate than she would receive under the intestacy formula. On that basis, the first respondent submits that the applicant is in a position of conflict.

Removal of executor

The court held that not every conflict of duty and interest should result in removal of an executor. However, removal may be warranted where the conflict will involve an executor having to decide whether to accept or reject his or her claim against the estate.

Similarly, the testator’s intention that the executor be a particular person should not lightly be set aside – whether before or after the grant [at 44]. However, the Court held that in the present case removal may be warranted as the conflict involves an executor having to decide whether to accept or reject her claim against the estate.

The court was satisfied in the circumstances to order that the grant of letters of administration be made to the first respondent` as administrator.

As one of the intestacy beneficiaries, the first respondent is next entitled in the descending order of priority of persons to whom the court may grant letters of administration with the will: r 603 of the Uniform Civil Procedure Rules 1999 (Qld),

Importantly the first respondent is willing to administer the estate and has no conflict that would lead to their removal as administrator. The second respondent, also an intestacy beneficiary, supports the first respondent’s appointment as administrator.


The Court ordered that the administrator’s costs be reimbursed from the estate on an indemnity basis and the administrator’s costs are to be paid by the applicant to the estate on the standard basis.

Although a will can be prepared using a Will Kit, it is important to exercise caution. A Will Kit may not be suitable for your affairs as it can be highly contestable in Court. It also may not distribute your estate in the way you wish.

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