In the Estate of Allen Sidney Alcock [2025] ACTSC 351

Rectification of Wills – Key Principles

Section 12A of the Wills Act 1968 (ACT) empowers the Supreme Court to rectify the probate copy of a Will where:

1. The Will fails to give effect to the actual intention of the testator when it was made (s 12A(1)); or
2. The Will fails to give effect to the testator’s probable intention, taking into account unforeseen or unappreciated circumstances (before, during, or after execution, or arising after death) (s 12A(2)).

Applications must generally be made within 6 months of probate/administration, unless the Court grants leave. Personal representatives may protect themselves by publishing notice of intended distribution and waiting one month.

Distinction Between Wills Act 1968 (ACT) Subsections

s 12A(1): Focuses on the testator’s actual intention at the time of execution. 

s 12A(2): Broader and more “radical”; allows rectification based on the testator’s probable intention if they had known or understood unforeseen events, even those arising post-death, enabling the Court to “fill the gap” in a way common law does not permit.

Approach Under s 12A(1)

The Court must determine:

1. The meaning of the Will.
2. The testator’s testamentary intention at execution.
3. Whether the Will reflects that intention.
4. If not, what should be done? Should rectification occur?

The Court carefully scrutinises the testator’s intentions on the balance of probabilities, as the testator cannot give evidence.

• Extrinsic evidence is admissible to resolve ambiguity, uncertainty, or meaningless wording. Still, it cannot create ambiguity (s 12B).

Approach Under s 12A(2)

The Court may order rectification if:

• Events or circumstances were not known, anticipated, or fully appreciated by the testator, or arose after death; and
• Because of these, the Will fails to reflect the testator’s probable intention.

The inquiry is hypothetical—what the testator would probably have intended had they fully appreciated the circumstances.

The Court exercises a broad discretion, guided by fairness and the interests of justice. The provision is treated as beneficial legislation, requiring a “fair, large and liberal” interpretation rather than a narrow or technical one.

Broader Context

Section 12A of the Wills Act 1968 (ACT) gives the ACT Supreme Court extensive rectification powers compared with other Australian jurisdictions.

• It permits the Court to insert or omit words in the probate copy of the Will to reflect actual or probable intention.
• Beneficiaries affected by rectification retain rights to recover wrongly distributed property despite protections afforded to personal representatives.

Background

Allen Sidney Alcock, a retired scientist and WWII Navy veteran, died in February 2021 at 93. He had no surviving spouse, partner, or children.

Earlier Wills: His 2012 and January 2014 wills, prepared by solicitors, left gifts to his friend Barrington Brown, Brown’s family, and the USS Enterprise CV-6 Association.

Final Will (June 2014): Drafted without legal advice. It included:

• A $500,000 gift to “Barrington Brown to [sic] be shared amongst his Grand-Children”; and
• A gift of the residue to the “CV-6 U.S.S. Enterprise Veterans Association.”

Difficulties:

• Mr Brown died in 2017, before the testator.
• The USS Enterprise Association was dissolved in 2016, and its funds were donated to the National Naval Aviation Museum (Florida) and the River Vale Free Public Library (New Jersey).

The executor named in the Last Will renounced. The Public Trustee and Guardian obtained administration in July 2021.

Application for Rectification

On 20 December 2024, the Public Trustee applied under s 12A of the Wills Act (ACT) to rectify the Last Will:

1. Clause 5 (residue): To divide the estate equally between the River Vale Free Public Library and the National Naval Aviation Museum. Alternatively, if that gift failed, it was to a charitable organisation most nearly fulfilling the deceased’s intended objects.
2. Clause 6 ($500,000 gift): To clarify that the gift is to Barrington Brown on trust for his grandchildren, or, if he predeceased, to be distributed equally among those grandchildren surviving the testator.

Leave was sought and granted because the application was out of time under s 12A(3).

Findings on Evidence

• Brown’s family: Mr Brown predeceased the testator but was survived by eight grandchildren, six of whom are adults.
• USS Enterprise Association: Although no longer existing, it had objects similar to those referenced in earlier wills. Upon dissolution, its assets were transferred to the Naval Museum and River Vale Library, consistent with its bylaws.
• Deceased’s prior wills included gifts to Mr and Mrs Brown and the Association (with a fallback clause authorising substitution if the gift failed).

Outcome

• The Court found the rectification orders sought by the Public Trustee were consistent with the deceased’s testamentary scheme and probable intention.
• The Court ordered an amendment to the Will accordingly, ensuring the $500,000 gift benefitted Brown’s grandchildren and applying the residue to the two identified museums.

Time Limit and Leave to Apply

• Under s 12A(3) of the Wills Act (ACT), an application for rectification must generally be filed within six months of a grant under s 88 of the Administration and Probate Act 1929 (ACT), unless the Court grants leave.
• In this case, the Public Trustee received letters of administration on 27 July 2021, meaning the deadline was 26 January 2022.
• The applicant filed a rectification application on 20 December 2024, well outside the prescribed period.
• Leave was therefore required.

Considerations for Leave

Counsel for the Public Trustee relied on a South Australian authority holding that the discretion to extend time is broad but must be exercised judicially and in the interests of justice (Re Estate of Molnar[2016] SASC 55).

Several factors explained the delay:

• complexity of the Will;
• Time taken to obtain advice, gather evidence, and locate family and next of kin;
• obtaining prior solicitor’s notes;
• administrative and Covid-related delays;
• difficulties dealing with US entities; and
• The need to administer the estate of the deceased’s wife.

• Although the explanation for the delay was weak, other factors supported granting leave:
  • The estate remains largely undistributed.
  • The applicant notified all potential beneficiaries, and there was no opposition.
  • Refusing leave would force judicial advice and possibly cy-près proceedings, delaying administration and increasing costs.

The Court was satisfied it was just and proper to grant leave nunc pro tunc.

Nunc pro tunc (meaning “now for then” in Latin) refers to a court’s power to issue an order later but give it retroactive effect. It is primarily used to correct judicial mistakes or omissions that might otherwise disrupt the proper functioning of the legal system. Where the written record of a trial court’s judgment does not accurately reflect what was decided, the court may amend the record afterwards to align it with the actual ruling. To avoid unfairness or prejudice to any party, the corrected decision is treated as effective immediately. In this way, nunc pro tunc orders are a mechanism for rectifying court errors or oversights to ensure just outcomes.

Rectification of Clause 5 (USS Enterprise Gift)

Original wording: Left the residue to “CV-6 U.S.S Enterprise Veterans Association” (with extraneous text mistakenly included).

Problems:

• Typographical error.
• The name of the intended entity (USS Enterprise CV-6 Association) is incorrect.
• The association ceased in 2016, and the testator did not name a fallback provision.

Under s 12A(2), the Court can rectify where circumstances not anticipated by the testator defeat their probable intention.

The Court accepted that the deceased did not anticipate the Association’s dissolution. 

Looking at the 2014 solicitor-drafted Will, which had included a discretionary fallback clause, the Court inferred that the deceased would have intended the executor to redirect the gift to a similar charitable organisation if the Association no longer existed.

Rectification ordered: Clause 5 amended to provide that if the Association cannot receive the gift, distribution of the residue to whichever charitable organisation(s) the executor considers most nearly fulfil the deceased’s intended objects.

Rectification of Clause 6 ($500,000 Gift to Brown’s Grandchildren)

Original wording: “I GIVE $500,000.00 TO Barrington Brown, to be shared amongst his Grand-Children.”

Problems:

• Ambiguity over whether this created a trust.
• No provision made if Mr Brown predeceased (which he did).

The Court held:

• The language obliged Brown to distribute the gift equally to his grandchildren, not to him personally.
• However, uncertainty arose as to what should happen if Brown predeceased.

• Applying s 12A(2), the Court found that the deceased did not anticipate Brown’s death but would probably have intended the grandchildren to take directly in that event.
• Rectification ordered: Clause 6 amended to state that Brown holds the gift on trust for his surviving grandchildren, or if he predeceased, the executor is to distribute equally among them.

Final Orders

1. Leave granted nunc pro tunc to the Public Trustee to apply for rectification.
2. Clause 5 rectified: If the USS Enterprise Association cannot receive the residue, the executor may distribute it to charitable organisation(s) most nearly fulfilling the intended objects.
3. Clause 6 was rectified: $500,000 was to be given to Brown on trust for his surviving grandchildren, and if Brown predeceased, the executor was to distribute it directly to those grandchildren in equal shares.