Re Estate of Luttrell [2024] VSC 598 was an application for rectification of the Will dated 20 March 1996 of the late Elizabeth Ann Luttrell, who died on 4 August 2022, with her husband, Tasman Percy Luttrell, dying 28 days later. The plaintiffs, Mark Luttrell (Tasman’s son) and Shannon Toleman (Elizabeth’s niece) sought rectification of the Will. The respondent, Tasman’s daughter, Debra Carracher, opposed the application.
An application to amend a Will under section 31 of the Wills Act 1997 (Vic) allows the Court to rectify a Will if it fails to reflect the testator’s intentions due to
(a) a clerical error or
(b) the Will not implementing the testator’s instructions.
Supporting procedural details are outlined in Order 12 of the Supreme Court (Administration and Probate) Rules 2023. The application must generally be filed within six months from the Grant of Probate, although extensions are possible.
Background
Re Estate of Luttrell [2024] VSC 598 highlights the application of s31. The Will in question contained a cross-referencing error in a clause that, if uncorrected, would have unintentionally given a life interest and a remainder interest in a property at East Doncaster, which the deceased and the husband owned as tenants in common in equal shares contrary to the testator’s clear intentions. The applicants sought rectification, so the Will aligned with Elizabeth Luttrell’s instructions that her estate be distributed equally between her and her husband’s beneficiaries.
Importantly, s36 of the Wills Act 1997 provides admissible evidence to clarify a Will.
(1) In any proceedings to construe a Will, if the language used renders the Will or any part of the Will—
(a) meaningless; or
(b) uncertain or ambiguous on the face of the will or
(c) uncertain or ambiguous in the light of surrounding circumstances—
evidence may be admitted to assist in the interpretation of that language.
(2) Evidence which may be admitted under subsection (1)(c) does not include evidence of the testator’s intention.
(3) Nothing in this section prevents the admission of evidence which would otherwise be admissible at law in any proceedings
A Handwritten Note was admitted under s 36(1)(b) due to ambiguity in the language of the Will, particularly in clause 3’s reference to clause 4.2(a) producing an irrational outcome, granting Tasman a more favourable complete interest if he failed to maintain the property than if he fulfilled those obligations. Such a result was deemed contrary to the couple’s intentions.
The court concluded that Elizabeth created a note while drafting her Will, as it was found in her filing cabinet and contained specific instructions for dividing her estate, including references to Natoli’s firm. Although some personal effects and “wishes” were omitted from the final will, this aligned with standard practice for solicitors. The solicitor accepted responsibility for a drafting error that conflicted with Elizabeth’s and Tasman’s instructions, and the evidence, including the handwritten note, supported the proposed rectification, reflecting their intentions.
Key findings in this case included:
- Clerical Error: The Court examined whether the incorrect clause reference qualified as a clerical error under s31(1)(a). Drawing on the precedent set in Marley v Rawlings [2014] UKSC 2, a broad definition of clerical error was applied, encompassing drafting mistakes by solicitors.
- Testator’s Intentions: The Court relied on the solicitor’s testimony and a handwritten note by the testator, which provided clear evidence of her estate planning intentions. These aligned with the proposed rectification, ensuring the property’s division respected her wishes.
The Court concluded that rectification was appropriate under both s31(1)(a) and s31(1)(b) and ordered the necessary amendments. It also directed that the estate cover the respondent’s costs, given her role in challenging the application. The solicitor responsible for the error was also ordered to pay the plaintiffs’ legal costs.