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The alterations to clause 5 of the Will

12. It is unclear whether the alterations were made before or after the execution of the Will. If they were made before, there is on the face of the document no issue with the alterations because the Will is otherwise validly signed in accordance with the requirements of s 9 of the Wills Act. It is signed at the end by the testator and her signature is witnessed by two persons present at the same time who have each attested to the signing of the Will. The alterations are validly made, without more, if they were made before the Will was executed.

13. If the alterations were made after the document was signed and witnessed, s 12 of the Wills Act has work to do. It provides: 12 Alteration in will (1) An obliteration, interlineation, or other alteration made in a will after the execution of the will is not valid or effectual for any purpose, except so far as a word in the will or the effect of the will before the alteration is not apparent, unless— (a) the obliteration, interlineation or alteration is signed by the testator or by another person in the presence of and by the direction of the testator; and (b) the signature of the testator is made or acknowledged, or the signature of the person who signs the will by the direction of the testator is acknowledged, by the testator in the presence of 2 or more witnesses present at the same time; and (c) 2 or more of those witnesses each attest that signing or that acknowledgment of that signing and subscribe the obliteration, interlineation or alteration in the presence of the testator and of the other witness or witnesses. (2) An obliteration, interlineation or other alteration made in a will after the execution of the will shall be deemed to comply with the provisions of subsection (1) if the signature of the testator or of the person who signs on behalf of the testator and the subscription of the witnesses, in relation to the obliteration, interlineation or other alteration, are made— (a) in the margin, or on some other part of the will, opposite or near to the obliteration, interlineation or other alteration; or (b) at the foot or end of, or opposite to, a memorandum that refers to the obliteration, interlineation or other alteration and is written at the end, or at another part, of the will.

14. Where, as in this case, the word before it was struck through is apparent, the alteration by striking through of the word will only have valid effect if it is signed by the testator in the presence of two or more witnesses present at the same time and is attested to by each of those witnesses. That did not occur here. Each of the changes appears to be accompanied by the initials “LM”. Leisa attests to recognising her mother’s handwriting on the document and she recognises the initials accompanying the subject alterations. However, there is no indication the two witnesses attesting to Lesley’s signature at the end of the Will witnessed her making the changes to clause 5. Even if they did, they failed to affix their own signatures to the alterations. As a consequence, s 12 renders the alterations to the document invalid. Of course, if they are read back in, clause 5 makes no sense as it becomes: I direct my Executor(s) to pay all my debts and then I give the residue of my estate to My ¼ share to my three living children & the other ¼ share to Garry’s widow & daughter Kerry & Ebony Manning equally[.]

15. The evidence before me includes an affidavit of Dorothy Sandford who confirms she is one of the witnesses to the signing of the Will. Regrettably, although Dorothy has a recollection of observing the signing of the Will, she is unable to say whether the words struck through in clause 5 were struck through at the time of its signing. In the absence of any other evidence on the topic, I am unable to conclude, on balance, the subject changes were made before the original Will was signed. As a consequence, the effect of clause 12 is to invalidate the alterations and clause 5 is to be interpreted as if the struck through words remained in the clause. It is then necessary to consider whether a remedy giving effect to clause 5 of the Will in an amended form, with the struck through words removed, is otherwise available.

The impact of s 11A

16. Section 11A of the Wills Act extends not only to recognition of a document not executed with required formalities but also to amendments made to a document. The question here is whether the amendment of the Will by striking through the identified words in clause 5 should be recognised as validly amending that part of the Will, notwithstanding non-compliance with the required formalities in making the amendments.

17. In Estate of Cornwell [2025] ACTSC 118; 394 FLR 244, McWilliam J set out the questions to be addressed by a court in determining an application pursuant to s 11A at [20]: (a) Is there a document? (b) Does the document purport to embody testamentary intentions of a deceased person? (c) Is the evidence which has been tendered such as to satisfy the court that at the time the document was brought into existence or at some later time the deceased person, by some act or words, demonstrated that it was his or her then intention that the document should without more on their part operate as their will?

18. The first question is readily answered. There is a document constituting a valid will, with or without amendments made to clause 5. In this case, the second question is whether the document, as amended, purports to embody the testamentary intentions of Lesley. Given the alterations were made to a document that on its face purported to be her will, and with due regard to the circumstances in which it was initially validly executed, there is no real doubt the amendments, where they were made by Lesley, were intended to embody testamentary intentions. I am satisfied they were made by Lesley. Leisa attests to the very limited access others would have had to the document after the date of its initial execution. She also attests to recognising her mother’s handwriting in the document and her initials adjacent to the subject alterations.

19. As to the last question, I am satisfied Lesley by her actions demonstrated the document in its amended form should, without more on her part, operate as her will. The alterations were made to a document Lesley clearly understood to be her will, and to be a document intended to have legal effect as to the disposition of her estate. By making the alterations and affixing her initials to them, I am satisfied she intended them to have legal effect. I note also the document was given by Lesley to Leisa for safekeeping. The act of requiring the amended document to be safely stored is of itself indicative of an intention it should have legal effect.

20. For the reasons set out above, it is appropriate for an order to be made pursuant to s 11A recognising the amended will, notwithstanding the amendments were likely made not in compliance with the required formalities.

Should clause 5 be rectified?

21. The second issue is that of rectification to avoid any uncertainty as to the meaning of clause 5.

22. Section 12A of the Wills Act provides, relevantly: 12A Rectification (1) If the Supreme Court is satisfied that the probate copy of the will of a testator is so expressed that it fails to carry out his or her intentions, it may order that the will be rectified so as to carry out the testator’s intentions. (2) The Supreme Court may order that the probate copy of the last will of a testator be rectified to give effect to the testator’s probable intention if satisfied that— (a) any of the following apply in relation to circumstances or events (whether they existed or happened before, at or after the execution of the will): (i) the circumstances or events were not known to, or anticipated by, the testator; (ii) the effects of the circumstances or events were not fully appreciated by the testator; (iii) the circumstances or events arose or happened at or after the death of the testator; and (b) because of the circumstances or events, the application of the provisions of the will according to their tenor would fail to give effect to the probable intention of the testator if the testator had known of, anticipated or fully appreciated their effects. …

23. As to the evidence that may be relied upon to assist in construction of the Will, s 12B provides: 12B Extrinsic evidence In proceedings to construe a will, evidence, including evidence of the testator’s dispositive intention, is admissible to the extent that the language used in the will renders the will, or any part of the will— (a) meaningless; or (b) ambiguous or uncertain on the face of the will; or (c) ambiguous or uncertain in the light of the surrounding circumstances; but evidence of a testator’s dispositive intention is not admissible to establish any of the circumstances referred to in paragraph (c).

24. As I stated in Estate of Clarke [2026] ACTSC 288, s 12A provides two pathways to rectification. The first is where the will fails to carry out the testamentary intentions of the deceased person. The second is where, as a consequence of events that were not known or anticipated or fully appreciated, the will requires rectification to give effect to the probable intention of the testator.

25. It is the first category that applies here. That is, the will fails to carry out the actual intention of the testator when making the will. In determining such an application, it is necessary to consider: (a) the meaning of the will; (b) the testamentary intention of the testator; (c) whether the will accurately reflects that intention; and if not, (d) whether the will can be rectified and if so in what terms: Estate of Rummer [2017] ACTSC 277; 12 ACTLR 258 and Estate of Tyson [2017] ACTSC 353.

26. In this case, the meaning of clause 5 of the Will, as amended, is ambiguous. By its plain words, it arguably provides for disposition of only 50% of the residue of the estate as I have described above, with one quarter share to be divided between the three living children, another quarter share gifted to Ebony and the other 50% of the residue unaccounted for.

27. I am satisfied that was not Lesley’s testamentary intention. Her use of the words “the other quarter share” after making provision for the three living children is strongly suggestive of an intention to have disposed of three quarters of the residue in her gift to the three living children. It is also entirely consistent with earlier versions of her will where she had gifted the residue of her estate to her four children in equal shares. I therefore accept it was Leslie’s testamentary intention to provide for the distribution of the entire residue of her estate in four equal shares to her three living children and to Garry’s daughter Ebony. To the extent of the ambiguity identified, the Will does not accurately reflect that intention.

28. The Will can be readily rectified to give effect to that intention with the addition to clause 5 of the words “each of” between the words “quarter share to” and “my three living children”. For the reasons given above, I make that amendment. The more recent document

29. Amongst Leslie’s papers, an additional document was located. Leisa attests to it being found in the same location as the Will. The document is reproduced below: I, Lesley Estelle Manning being of sound mind leave my financial inheritance to be divided as stated in my will. I do not believe Rodd is capable of handling such money and therefore am requesting his sister Leisa and Gail equally share his money to be given to support him so required. L. Manning Lesley Estelle Manning. 22 October, 19 22-20

30. No application is made in relation to the document, and I understand it is provided to the Court in the interests of full disclosure and candour. Although the date is not entirely clear, the document appears to post-date the Will. In the document, Lesley raises a concern about Rodd’s capacity to manage his bequest and requests, in essence, his sisters manage it on his behalf. The document seems to me to be at least an expression of a testamentary wish. I note Lesley expresses it as a request rather than a direction.

31. A document constituting no more than a wish or a statement of intent as to the distribution of a person’s property upon their death is insufficient to prove that document as a will or as a codicil to a will: Rodny v Weisbord [2022] NSWCA 22; 102 NSWLR 403 at [17] (Meagher JA).

32. I consider the subject document to do no more than comprise an expression of Leslie’s wishes as to the management of the gifts she makes in her will upon her death. The language does not support a conclusion the document was intended to give legal effect to that wish. As a consequence, it does not cause me to alter the determinations I make pursuant to ss 11A and 12A above.

Orders

33. The orders of the Court are: (1) Pursuant to s 11A of the Wills Act 1968 (ACT), the deletion of the words “my”, “widow”, “&”, “Kerry” and “Equally” in clause 5 of the will of the Lesley Estelle Manning dated 25 April 2018 (the Will) is an amendment to the Will such that those words do not form part of the Will. (2) The will is rectified pursuant to s 12A of the Wills Act 1968 (ACT), with the addition in clause 5 of the words “each of” between the words “1/4 share to” and “my three living children”. (3) The Registrar is directed to do all things and take all steps necessary to grant probate of the Will to Leisa Ann Brown. (4) The plaintiff’s costs of and incidental to these proceedings are to be paid from the estate on a solicitor-client basis.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller.

Associate: Date: