Common Errors in Wills and Their Rectification Processes

Rectification in Law and Equity

Rectification generally means correcting an error to restore something to its intended or proper state. In law, rectification is used to amend documents, like contracts or wills. This occurs when, due to mistakes, they do not reflect the parties’ testamentary intentions.

1. Common Law: Permits limited rectification by interpreting documents based on what a reasonable person would understand. This is especially applicable where there is an obvious drafting error.
2. Equity: Has broader powers to correct instruments when parties have mistakenly recorded their agreement. This rectification is grounded in fairness and focuses on correcting wrongly worded documents to match a proven shared intention.

But there is a fundamental difference between legal and fair approaches. Equity focuses on the moral unfairness of enforcing a document. It addresses when the document misrepresents the parties’ actual intentions.

No Equitable Rectification of Wills

Traditionally, courts of equity do not have the power to rectify wills. But, this gap is now addressed by statute in NSW through s 27 of the Succession Act 2006. This law allows rectification in specific circumstances.

Summary: Rectification of Wills – s 27(1) Succession Act (NSW)

1. Statutory Power and Timing
   
2. The Court has the power to rectify a Will under Section 27(1) of the Succession Act 2006 (NSW). This is applicable if it does not reflect the testator’s intentions. This rectification happens for one of two reasons. The first reason is a clerical error. The second reason is a failure to give effect to the testator’s instructions.
   (a) a clerical error, or
   (b) a failure to give effect to the testator’s instructions.

This provision applies to wills where the testator died on or after 1 March 2008. The plaintiff must file applications within 12 months of death (s 27(2)). In Reeves v Reeves [2024] NSWSC 134, the plaintiff applied just within time.

2. Key Legal Principles
   The rectification power requires the Court to be satisfied of two things:

The Will fails to show the testator’s actual intentions at the time the testator made the Will.
A strict evidentiary standard: courts need clear and convincing proof on the balance of probabilities.
The Court assesses intentions as at the date of the Will, not the date of death. The Court must reconstruct what the testator meant or instructed at the time they made the Will.

3. Instructions vs Intentions

“Instructions” are understood as communications made by the testator to another person (e.g., a solicitor), expressing the distribution of the estate. Thus, s 27(1)(b) typically does not apply to handwritten Wills composed solely by the testator. This is because the testator did not give instructions to a third party.

“Intentions” refer to what the testator wanted the Will to achieve. These should match the testator’s instructions, as obeying instructions is assumed.

4. Clerical Error – Judicial Interpretation
   A clerical error involves mistakes in writing or transcribing the testator’s intentions. For example, inserting incorrect wording. Another example is omitting a key provision by accident. It includes typographical mistakes. It also includes misreading notes. It does not include misunderstandings of instructions or failures to explain the Will properly to the testator.

UK case law (e.g. Marley v Rawlings & Another [2014] UKSC 2 ) has influenced Australian interpretation. Still, Australian courts exercise caution when directly applying UK precedents. These differences arise from the wording in the UK’s Administration of Justice Act 1982. They also stem from s 27(1) of the Succession Act 2006 (NSW).

5. “Because” vs “In Consequence Of”
   The statutory word “because” in s 27(1) has been interpreted. It means a causal link must exist. This link is between the clerical error or instruction failure. It results in the Will’s failure to show the testator’s intentions.

There is no obligation that the clerical error be the sole or dominant cause, only that it caused the discrepancy.

6. Summary of Applicable Test (from Lockrey v Ferris and Singh v Singh)
   To grant rectification, the Court must answer three questions:

What were the testator’s actual intentions about the part of the Will under challenge?
Does the Will fail to carry out those intentions?
Is that failure due to a clerical error or a failure to follow instructions?
If answering all three affirmatively, the Court can order rectification.
This body of law provides that rectification is a remedial, not a rewriting process. The Court can not substitute its view of what the testator “probably would have wanted.” It must be sure of the testator’s intention.

Statutory Rectification of Wills (s 27 Succession Act)

Section 27 allows the Court to amend a Will to reflect the testator’s actual intentions if:

1. There was a clerical error, or
2. The Will fails to give effect to the testator’s instructions.

Key Features:

1. Make applications within 12 months of the testator’s death.
2. The Court may grant extensions if necessary and if the final distribution of the estate has not occurred.
3. The section applies broadly but is not unlimited; it captures only mistakes linked to instructions or clerical drafting errors.

Key Case Summaries

Reeves v Reeves [2024] NSWSC 134

1. Courts must decide whether it’s the error that caused the Will not to reflect the testator’s intentions.
2. The clerical error is not necessarily the primary or dominant cause.

Vescio v Bannister [2010] NSWSC 1274

The Court:

1. Identifies the testator’s instructions.
2. Compares the actual Will to those instructions.
3. Rectifies the Will only if there is a discrepancy.
4. “Instructions” imply a communication from the testator to another person (e.g. a solicitor). A handwritten Will is not rectifiable under s 27(1)(b).

Bear v Bear [2022] NSWSC 168 section 27(3) permits extensions of time where:

1. It is necessary (e.g., to give effect to the testator’s intentions).
2. The final distribution of the estate has not occurred.
3. After some assets were distributed, rectification proceeds if other estate parts are undistributed.

Cocos and Water License WAL 1670 – agricultural property and water rights

1. “Cocos” is a 2,980-acre farming property. It has irrigation capacity from a water access license (WAL 1670). This license is drawn from the Lachlan River.
2. The water license (WAL 1670) allowed extensive irrigation, enhancing the land’s `productivity and stock capacity.
3. Initially governed by the Water Act 1912, licenses transitioned under the Water Management Act 2000 (NSW). Under the new regime, water licenses became transferable and separable from land ownership.
4. WAL 1670 was issued to Ronald and Norris Bros as tenants in common in 2008. The evidence does not show the reason for this arrangement.
5. The entitlement results from the historical use of the land and water, as outlined in the legislation’s transitional provisions.

In New South Wales (NSW), Water Access Licenses (WALs) are a legal mechanism. These licenses allow individuals or organisations to access and use water from specific sources. These sources include rivers, lakes, or aquifers. WALs are considered property rights to be bought, sold, subdivided, or transferred independently of any associated land.

Key Features of Water Access Licenses:

What are WALs?
WALs grant the right to a share of water from a particular source and specify its permitted use (e.g., irrigation, town supply). They are separate from land ownership and often come with usage conditions.

Management and Oversight:

The NSW Department of Climate Change, Energy, the Environment and Water (DCCEEW) and WaterNSW handle several responsibilities. They license, approve, and manage WALs for trading and operational management.

Water Sharing Plans distribute water among users, including rules for trading and usage.

Acquiring a WAL:
Applicants must apply for a WAL to access water legally. They also require any necessary approvals for works, such as pumps or bores. After the grant, register a license with NSW Land Registry Services.

Trading WALs involves several legal and regulatory frameworks. These include the Water Management Act 2000, relevant Access License Dealing Principles, and water sharing plans.
Any changes to existing water access licenses must be registered with NSW Land Registry Services (LRS). This registration must occur within six months of the grant of the dealing. Local councils can trade water only if it doesn’t compromise community water needs.

Any dealings for registration shall be provided to LRS with the water access license certificate of title. A breach of the Water Management Act 2000 results in the expiry of the dealing approval.

Water Allocations:

Each year (starting 1 July), WAL holders get a water allocation. This allocation is based on factors like availability, climate, and the applicable water sharing plan.

In drought or low water conditions, the DCCEEW and WaterNSW may reduce water allocations.

WaterNSW provides regular updates on allocations and availability.

In short, WALs are a flexible and regulated way to access and manage water in NSW. They allow trading and strategic use. Sustainability is ensured through planning and oversight.

Key Takeaways

1. Rectification in wills is statutorily governed in NSW by s 27 of the Succession Act 2006.
2. Rectification is allowed when the Will does not reflect the Will-maker’s testamentary intentions. This is permitted if the error arises from a clerical mistake. It is also permissible if there is a failure to implement clear instructions.
3. Courts need compelling evidence of the testator’s intentions and the cause of the discrepancy.
4. Deadlines and partial distributions of the estate are relevant but not invariably fatal to a rectification claim.
5. Water licenses like WAL 1670 were once tied to land ownership. Now, they are standalone assets. Estate planning must account for legislative changes in its treatment.

Background: Lachlan River and the Norris Family

The Lachlan River, Australia’s fourth-longest river, flows from near Goulburn to the Great Cumbung Swamp. It is unique among NSW rivers in having significant wetlands along its entire length. Lake Cargelligo—closely linked with the Norris family—is an important drought refuge within the Lachlan catchment, also known for recreational use.

Members of the Norris family, including Ronald James Norris (deceased), lived in the Lake Cargelligo region. Ronald, a farmer and grazier, resided at Fairview Cargelligo and owned a rural property called Cocos near Condobolin. The Lachlan River borders Cocos. It irrigates the property using WAL 1670. This water licence was issued jointly to Ronald and Norris Bros Pty Ltd, a family farming company.

The Will and the Alleged Omission

Ronald made a Will on 8 February 2018, appointing John Redenbach (accountant) and his grandnephew Scott Harvey as executors. The Will distributed:

1. Specific rural lands to nephews (e.g., Cocos to Brian Norris, Coandown and Vigana to Keith and Michael Norris).
2. Cash legacies to family members.
3. Transfer of the estate’s residue to Scott and Neil Harvey.

Nonetheless, WAL 1670, a significant asset, was not expressly mentioned in the Will. The executors argue this was a mistake. They claim that Ronald intended to leave his interest in WAL 1670 to Brian. This was meant to be alongside the Cocos property. They contend that the omission was the fault of the solicitor, Mr Olsen, who had drafted the Will.

Family and Property Context

Ronald and his brothers (including George and Harold) were childless but closely involved in joint farming ventures. Over time, assets were held in various ways, including in individual names, jointly, or under Norris Bros Pty Ltd. WAL 1670 was issued in 2008. It was registered in the joint names of Ronald and Norris Bros. This was done under the Water Management Act 2000 (NSW).

George Norris died in 2014, leaving his estate to Ronald. Ronald died in December 2018. Some assets from Ronald’s estate have been distributed. The Cocos property was transferred to Brian in 2021. Elgin has been sold. Cash legacies have been paid, but interest remains outstanding.

Legal Proceedings: Rectification Application

The executors filed proceedings on 28 March 2025. They sought rectification of the Will under section 27 of the Succession Act 2006 (NSW).

1. No defendants were named initially, but due to their interests, Brian and Neil were served.
2. On 20 June 2025, the registry received an amended summons from the plaintiff naming Norris Bros as a defendant.
3. The plaintiffs sought:
4. A declaration that the Will does not reflect Ronald’s intentions.
5. An order to rectify clause 3 of the Will. It states to replace “from the said company” with “I GIVE my interest in the following assets, and”.
6. Add “WAL 1670” to the list of assets gifted to Brian.
7. An extension of time to bring the rectification claim.
8. Costs and other appropriate orders.

An affidavit of service deposes to the service of the amended summons. Norris Bros has not filed a notice of appearance.

Key Legal Issue

WAL 1670 was excluded from Ronald’s Will. This happened because of a clerical error or missing instructions. Allowing the Court to rectify the Will under s 27 aligns it with his true intentions. This is important because Brian was left Cocos (to which WAL 1670 related).

Summary: Rectification of Ronald James Norris’s Will

Background with Solicitor and Will Drafting

Mr. Olsen was the solicitor to the Norris brothers from the late 1980s. He prepared similar wills for George and Ronald in the early 1990s. These wills listed which nephews were to inherit specific properties. At the time, water license approvals were granted before the Water Management Act 2000. These licenses are connected to the property to be included in the sale. They are transferred on settlement. After regulatory changes around 2000, Olsen updated a spreadsheet-style list of Crown land holdings. He included water licenses, like WAL 1670, linked to the property Cocos.

Olsen made handwritten annotations to this list in Ronald’s presence. He included writing Brian’s name next to WAL 1670. Olsen says this reflected Ronald’s explicit instructions. Ronald wanted Brian to inherit Cocos and its associated water license. Ronald expressed an intention that “whatever is on the farm goes with the farm.” All related assets (land, stock, machinery, water licenses) pass together.

Despite this, Ronald’s 2018 Will, prepared by Olsen, did not mention WAL 1670. Olsen admitted the omission was an oversight.

Instructions and Attempted Transfers Before Death
In 2018, Ronald instructed Olsen to transfer properties approximately six months before he died. These properties, including WALs, were to be given to those intended to benefit under the Will. Olsen started this process. He did not complete the transfer of Cocos and WAL 1670 to Brian. This was partly due to tax complications.

Delay and Procedural History

The Succession Act 2006 (NSW) stipulates the procedure to rectify a Will. An applicant must file within 12 months of death under section 27. Ronald died in December 2019, but the plaintiff did not file a rectification application until March 2025. The executors explained the delay:

1. The plaintiff sought legal advice in late 2022.
2. Recommended a formal rectification application in mid-2023.
3. A residuary beneficiary (Neil Harvey) opposed the change in 2024, arguing that WAL 1670 should fall into residue.
4. The DCCEEW and WaterNSW had not distributed WAL.

Key Legal Submissions

1. Mr. Birtles, for the executors, submitted that Olsen made an error. He failed to include WAL 1670 in the Will specifically. This was a failure to follow instructions.
2. He argued that “I GIVE my interest in the following assets…” should be added to clause 3. This addition would ensure that the Will included personally and company-owned assets.
3. The Will’s structure showed that Ronald was conscious of Norris Bros Pty Ltd.’s asset ownership, of which he was the sole shareholder.
4. The handwritten list, matching testimony from Olsen and Scott, supported Ronald’s consistent intention that Brian inherit Cocos and WAL 1670.

Court’s Findings and Orders

Despite the absence of detailed drafting evidence for the 2018 Will, the Court found:

1. Olsen’s evidence and recollection were credible, particularly Ronald’s consistent instructions.
2. The handwritten reference to Brian next to WAL 1670 confirmed Ronald’s intent.
   4. The omission of WAL 1670 appeared to be more than a clerical error. It was a failure to give effect to instructions.
3. In circumstances where the mistake is relatively straightforward, it is necessary to extend the time for making the application. The purpose of the revocation is to guarantee that the testator’s intentions are given effect. Without extending the time, the Court can’t make an order for rectification, which would frustrate Ronald’s intention.
4. In this instance, the persons affected by the relief sought have had an opportunity to contest the claim. They have chosen not to do so. This suggests no active prejudice.
5. There has been some distribution of property in the administration of the estate. Still, there has not been a final distribution. There has not been a distribution of WAL 1670.

Orders Made

The Court:

1. Extended time to bring the application under s 27(3).
2. Declared that the Will did not reflect Ronald’s testamentary intentions.
3. Rectified clause 3 of the Will by:
4. Adding: “I GIVE my interest in the following assets,” at the start of clause 3.
5. Inserting: “WAL 1670,” after “improvements” in clause 3(b).

Ordered that the estate bear the plaintiffs’ legal costs on an indemnity basis.