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[2026] ACTSC 288
Supreme Court of the ACT
2026-08-07
Muller J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: In the estate of Mary Patricia Clarke Citation: [2026] ACTSC 288 Hearing Date: 7 August 2026 Decision Date: 7 August 2026 Before: Muller J Decision: (1) The last will of the deceased person, Mary Patricia Clarke, dated 22 November 2017 is rectified pursuant to s 12A of the Wills Act 1968 (ACT), by removing cl 3 of the will. Catchwords: SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Rectification – consideration of relevant principles – where clause does not reflect deceased’s intention – circumstances not known or anticipated – ss 12A and 12B of the Wills Act 1968 (ACT) – rectification made Legislation Cited: Wills Act 1968 (ACT), ss 12A, 12B Cases Cited: In the Estate of Rummer [2017] ACTSC 277; 12 ACTLR 258 The Estate of Nicholas Paul Enright [2017] NSWSC 1646 Texts Cited: JR Martyn and N Caddick, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sweet & Maxwell Ltd, th th 20 ed of Williams and 8 ed of Mortimer, 2013) GL Certoma, The Law of Succession in New South Wales th (Lawbook Co., 4 ed, 2010) Parties: John Hugh Clarke (Applying Executor) Justin Patrick Clarke (Applying Executor) Brigid Jane Veale (Applying Executor) Representation: Counsel J Bridgewater (Applying Executors) Solicitors Snedden, Hall & Gallop (Applying Executors) File Number: PRO 470 of 2026 MULLER J:
On 7 August 2026 I made orders for rectification of the will of the late Mary Patricia Clarke. My reasons for doing so are set out below.
I will refer to the parties using first names with no disrespect intended. Mary died on 9 March 2026 leaving a will dated 22 November 2017. Mary’s husband, Hugh, predeceased her, but she was survived by her three children Brigid, Justin and John. The three children were appointed her executors and trustees under the will.
Mary was a journalist, writer and historian and her husband Hugh was also a writer. Cl 3 of Mary’s will is in the following terms: I APPOINT my daughter BRIGID JANE VEALE to be my literary executor and literary trustee to enable her to manage and control the intellectual property and copyright in all my published and unpublished works as well as the published and unpublished works of my late husband HUGH VINCENT CLARKE (“my literary estate”). I DIRECT that my literary executor and literary trustee distribute my literary estate and any net profits arising from my literary estate to my daughter BRIGIT [sic] JANE VEALE.
Mary’s children seek to rectify her will by removing cl 3. Their request is prompted by a requisition raised by the registry suggesting some ambiguity as to the meaning and effect of the appointment of a literary executor under the will. To understand why Mary’s children seek to remove cl 3 it is necessary to have some understanding of the role and responsibilities of a literary executor. The Cambridge Dictionary defines a literary executor as “someone who is responsible for an author’s literary property after their death…”. Accepting by virtue of it having a dictionary definition the term “literary executor” is in relatively common use, it is not a term that makes its way into the body of legislation governing the administration of wills and probate in the Territory. There is no statutory definition of the powers and duties of a literary executor appointed by will. In the English text, Williams, Mortimer and Sunnucks on Executors, Administrators and th th Probate (Sweet & Maxwell Ltd, 20 ed of Williams and 8 ed of Mortimer, 2013), the authors note at 102: Again, the power of an executor may be limited as to the subject-matter upon which it is to be exercised. Thus the testator may make A his executor for his plate and household stuff, B for his sheep and cattle, and C for his real estate or any part thereof. So a person may be made executor for one particular thing only and no more. If, However, it appears that there will be no executor to administer the property excluded, the court may construe the appointment as general and direct an unlimited grant, or may refuse probate altogether and direct administration with the will annexed. The same will may contain the appointment of one executor for general, and another for limited, purposes. Thus it is often convenient for an author to appoint a special “literary executor” in view of the special nature of property in his works, rather than involve his general executor in the employment and supervision of literary agents over long periods. (footnotes omitted by this court) th
To similar effect in The Law of Succession in New South Wales (Lawbook Co., 4 ed, 2010) the author observes at [14.210]: A testator may by will appoint an executor with respect to property in a specified locality and thus the grant will be limited to the specified country or locality. Similarly a will may appoint an executor limited to certain property, for example, literary works or a business conducted by the testator, in which case the grant will be limited to that property. (footnotes omitted by this court)
Accepting the appointment of an executor with duties limited to the management of literary works is a recognised concept, a question arises as to the legal effect of such an appointment and as to the duties and responsibilities accruing to the executor so appointed. This topic was the subject of careful consideration by Rein J in The Estate of Nicholas Paul Enright [2017] NSWSC 1646. The late Nicholas Enright was a well-known Australian playwright. By his will he appointed a literary executor. The proceedings concerned a dispute as to whether the intent of the appointment was the literary executor would be responsible for only that part of the estate, or alternatively whether he was appointed as executor and trustee for the whole estate, including the literary estate. After considering the competing arguments Rein J observed relevantly for these purposes in relation to the appointment of a literary executor at [41(3)]: It is agreed that a testator can appoint one person to be his or her executor over a particular property or class of property and another over the balance of the estate, and it was accepted that literary works is a class of property over which a separate executor can be appointed. Given the very special nature of literary works and their management this is not at all surprising.
In support of the application to remove cl 3 from the will, an affidavit of Brigid Jane Veale affirmed on 8 July 2026 is read. Brigid attests to the following relevant matters: (a) she is the person appointed literary executor and literary trustee pursuant to the will; (b) the literary estate comprises royalties from published and unpublished works of her late parents; (c) in the 24/25 financial year the royalties from such works amounted to $1808; (d) in future years the income will be reduced; (e) based on discussions with Mary during her lifetime Brigid believes the appointment was intended to convey to her the responsibility for managing the literary estate alone because Brigid is a journalist. She believes she was appointed to manage any ongoing contacts about her mother’s research. It was otherwise her mother’s intention the three children would manage her estate together; and (f) the value of the literary estate is so modest that Brigid will not be significantly worse off if the literary estate is simply distributed as part of the residuary estate equally between the three children.
In summary it is the joint position of the three children of Mary who are otherwise each appointed as executors of her estate and who, apart from the proceeds of the literary works, equally share in the residue of the estate, it was not their mother’s intention for Brigid to fill the role of a literary executor in the “probate sense” but it was intended her role would be limited to the administrative aspects of fielding enquiries concerning her mother’s literary works and research.
When is a will able to be rectified?
Section 12A of the Wills Act 1968 (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. …
As to the evidence that may be relied upon to assist in construction of the will, s 12B of the Wills Act 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).
Section 12A of the Wills Act provides two pathways to rectification. It is the second, broader, pathway relied upon in this instance. It is not suggested the will fails to carry out Mary’s intentions. Rather, that it should be rectified to give effect to her probable intention, Mary not having appreciated either the scope of the role of a literary executor for probate purposes or the additional administrative effort required in isolating the literary works component of the estate relative to the very modest value of that component. In relation to the breadth of the power given to the court under s 12A(2) of the Wills Act, McWilliam AsJ, as her Honour then was, observed In the Estate of Rummer [2017] ACTSC 277; 12 ACTLR 258 at [103]: The defendant’s supplementary submission contended for a restrictive application of the section, premised largely on the common law, and in particular on the long-established requirement that a will be in writing. However, the section is somewhat radical, in that it expressly allows the Court to fill the gap and do what the common law precludes (see, for example, the comments of Young J (as his Honour then was) in Re Estate of Max Frederick Dippert [2001] NSWSC 167 at [17], cited in Rawack at [26]), namely to determine the testator’s probable intention if (relevantly) he had fully appreciated circumstances that were not known by him, or their legal effect, and even including circumstances which occurred after the testator’s death, and then to supply words to meet those circumstances.
An extract from the speech of the Attorney-General given on 19 September 1991 on presenting to parliament the bill incorporating s 12A into the Wills Act gives some useful indication of the legislative intent underpinning the change: The second concerns the matter of unforeseen circumstances. This second matter will enable a court to insert words into, or omit words from, a will where the court is satisfied that certain circumstances or events existed, either before or after the will was made, that were generally not known to the testator. As a consequence of the lack of knowledge, the provisions of the will then fail to accord with what the testator's intentions would have been had he or she known of those circumstances. The provision represents a significant increase in the ability of the court to examine, and give effect to, the testator's underlying intentions in cases where, through no fault of the testator, circumstances combine to shipwreck those intentions. Applying s 12A(2) of the Wills Act
The questions to be addressed in this case are: (a) What is the meaning of the will? (b) What was Mary’s testamentary intent? (c) Does the will correctly reflect her intent? (d) If not, can it be rectified so it does reflect her testamentary intent?
In answering the first question, I am satisfied there is uncertainty as whether Brigid’s appointment as literary executor in cl 3 of the will was intended to have legal effect. Notwithstanding the general appointment of the three children of Mary as executors and trustees of the estate pursuant to cl 2, there is uncertainty as to whether Brigid is separately appointed as sole executor and trustee of part of the estate dealing with intellectual property and copyright in the published and unpublished works of Mary and Hugh. The legal effect of her sole appointment to part of the estate is the need for separate administration and management of the proceeds if any of the literary estate and a separate accounting for those proceeds. Cl 3 also, in a modest way, provides a greater financial benefit for Brigid compared with her two siblings as she is the sole beneficiary of the literary estate.
I am satisfied that was not Mary’s intent. Brigid’s evidence supports the view her mother’s intent was to provide her with an administrative responsibility to field enquiries concerning her parent’s published and unpublished literary works. I accept it was not her intent to create an additional burden in terms of the separate administration of a portion of the estate, nor to create an additional financial benefit for Brigid relative to her other children. It is also unlikely she appreciated the modest value of the income from the literary works relative to the burden created by the separate administration of that portion of the estate. As a consequence, I find the will does not accord with Mary’s testamentary intention.
Rectification of the will removes the legal effect of the appointment of a separate executor for a portion of the estate but does not undermine Mary’s expressed desire for Brigid to be responsible in the administrative sense for fielding enquiries relating to her parent’s literary works. As a consequence, I am satisfied this is an appropriate matter in which to rectify the will in the manner proposed. Order
I therefore made the following order on 7 August 2026: (1) The last will of the deceased person, Mary Patricia Clarke, dated 22 November 2017 is rectified pursuant to s 12A of the Wills Act 1968 (ACT), by removing cl 3 of the will. I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 11 August 2026