Mayo J cited re Horrocks (1939) P 198 pp216-7: "The jurisdiction of the Court of Probate to grant probate of a will textually different from the actual document signed by the testator is a strictly limited one. If the testator himself approved the words to which he put his signature (and the presumption is that he approved them), the words must stand. If the words were selected by a draftsman to whom the testator confided the task of drafting his will, similarly the words so selected must stand, even if the testator was ignorant of the actual words used. The mistake of the testator, or of the draftsman employed by him, as to the legal effect of the words used is immaterial. The jurisdiction, where it exists, is admittedly confined to the exclusion of words, and does not extend to the insertion of words, since the insertion of words would run counter to the provisions of the Wills Act." Mayo J then continued: "That there is jurisdiction to revoke a grant of probate is dealt with in numerous cases. Other authorities are also available showing that an error may, in some circumstances, be rectified by striking out words. I do not propose to quote any other judgments but I will mention some of the cases cited: Fulton v. Andrew (1875) LR 7 HL 448, In re Schott (1901) P 190, Brisco v. Baillie Hamilton (1902) P 234, Gregson v. Taylor (1917) P 256 and In the will of Cartledge [1919] ArgusLawRp 18; (1919) VLR 182. Reference was made by counsel in re Tait deceased (1957) VLR 405. The nature of orders that may be adopted is shown in Jane v. Jane (1917) 33 TLR 389."

The topic of rectification of a probate under the general law is reviewed more generally by Legoe J in re Wallace (19 January 1994-Judgment S4389). His Honour said: "There are numerous examples in the reported cases of where the English Probate Court has omitted words or figures for clerical or obvious errors in the will or codicil - Morrell v Morrell (1882) 7 PD 68 (the word "forty" wrongly included in a bequest of shares was ordered to be omitted); Re Morris : Lloyds Bank Ltd v Peake (1971) P 62 (Numeral "7" omitted from a codicil revoking two clauses, 3 and 7, in the will when the instructions were to revoke clauses 3 and 7(iv))."

Legoe J then adopted the views expressed by Jacobs J in the Estate of Kavanagh (1977) 16 SASR 342 namely that a Court of Probate when rectifying a grant of probate should not then construe the document as the Court on that occasion is only concerned with the issue as to the admissibility of testamentary instruments to probate.

I conclude that rectification in the sense as generally known to a Court of Probate (prior to the 1994 amendment in South Australia to the Wills Act) will not provide an adequate remedy in the circumstances of this case.

The facts of the present case may be compared with those which occurred in Wu v Glaros (1991) 55 SASR 408. In that case due to a solicitor's error leases by a common landlord to various lessees in a shopping complex issued with wrong title references so that the proprietors of the various shops found themselves with each others leases. The Full Supreme Court had no difficulty in directing rectification of the leases so as to accord with the common intention of the parties. Rectification in that case required consequential orders for cancellation of the leases incorrectly registered and the registration of the rectified documents.

The cases cited in my opinion provide by analogy a guide as to what is required in the present case.

Unlike for example the Inheritance (Family Provision) Act, which in s9(4) authorises the endorsement of the appropriate order on the probate parchment, the Wills Acts25AA contains no similar procedure. As a matter of principle and having regard to the essence of probate it would be dangerous for this court to make an order under s25AA without ensuring that its terms were incorporated in the probate parchment itself.

Bearing in mind the powers of the court to recall a probate (to which I have already referred) I consider that in the circumstances of the case of the late Mr Quick it is essential that a consequential order be made for the recall of the existing probate and for the grant of a fresh probate upon a document which brings to account the order which I make under s25AA of the Wills Act. I consider it to be appropriate that a fiat copy of the rectified will be used in this case as the document upon which the grant will issue.

The late Mr Quick executed his will prior to the introduction of s25AA of the Wills Act; that section took effect prior to the death of the late Mr Quick. Bearing in mind that a will speaks from death I am of opinion that s25AA may be here applied.

In reaching this conclusion I have adopted the process of reasoning which was used by Legoe J in the Estate of Kolodnicky (1981) 27 SASR 374 at 379-381. In that case Legoe J referred to the inchoate validity of a will which formally takes effect under the Wills Act when the testator dies leaving the instrument as the last pronouncement of his testamentary wishes. His Honour decided that s12(2) of the Wills Act (in its then form) applied to all probates coming to the court arising from deaths after the date when the s12(2) took effect. I consider that s25AA also operates under such conditions. In reaching this conclusion I decide only that which is necessary for this case. I can leave for another day the question whether s25AA has a wider field of application than I have here identified.

The form of order which I propose is one which meets the specific needs of this case. The essence of the correction is that relevantly cl3B of the will should be altered to read as follows: "....for such of my children the said Anthony John Quick the said David Michael Quick and my daughter Adrienne Anne Rennie as shall survive me and if more than one in equal shares as tenants in common provided however...."

The formal order will be: "Being satisfied that the will as admitted to probate does not accurately reflect the testamentary intentions of the late Mr Quick and for the purpose of giving proper expression to those intentions order as follows: 1. That the will of the late Mr Quick be rectified by deletion of the word "said" where it first appears before the word "children" in clause 3.B. and by the interpolation of the words "the said Anthony John Quick the said David Michael Quick and my daughter Adrienne Anne Rennie" immediately after the word "children" where that word first appears in clause 3.B.

2(a) That probate of the said Will granted on 3 November 1995 be revoked and declared null and void to all intents and purposes in the law whatsoever. 2(b) That the executors forthwith do deliver up to the Probate Registry of this Court the probate parchment for cancellation.

3 That Probate of the will, as rectified by this order, do thereafter issue to the plaintiffs.

4 That the costs of and incidental to the said summons and this order be taxed as between solicitor and client and paid out of the estate of the testator."

I direct that this order be settled in the Probate Registry.