JUPP -v- JUPP & Ors [2025] WASC 315 (8 August 2025)

(a) June Patricia Burton sworn on 13 November 2024 (Burton Affidavit);

(b) Anthony Leslie Jupp sworn on 15 November 2024 (Jupp Affidavit); and

(c) Christina Maria Ware sworn on 31 July 2025 (Ware Affidavit).

1. The deceased's wife, Margaret Ann Jupp, is the residuary beneficiary of the deceased's estate (Estate) under the terms of the Will and is joined as the first defendant. Anthony is the second defendant in his personal capacity as a beneficiary under the Will.
2. With no disrespect, as the deceased, Andrew and Margaret Jupp share the same surname, I will refer to them in these reasons by their first names. To avoid any confusion, I will refer to Anthony in his capacity as named executor of the Estate as the plaintiff and otherwise as Anthony.
3. The other defendants are Horricks Holdings Pty Ltd as trustee for the G A Lucas Family Trust (third defendant) and Jupp Nominees Pty Ltd as trustee for the Robert Jupp Family Trust (fourth defendant).
4. Attached to the Ware Affidavit are letters from each of the defendants confirming that they have been served with a copy of the Application and the plaintiff's outline of submissions, are aware of the Application and consent to it and the orders sought by the plaintiff.[1]
5. For the reasons that follow, I am satisfied that the Application should be granted, and that orders should be made extending the time for making the Application and rectifying the Will.

1. The following facts relevant to the Application are derived from the affidavits filed in support of the Application.
2. Robert died on 12 November 2023.[2] He was survived by:

(a) his wife, Margaret, the first defendant, and

(b) his three adult children:

1. Roberta Lehann Lucas,
2. Anthony, the second defendant, and
3. Colin Robert Jupp.[3]

1. By cl 2(a) of the Will, Robert appointed Anthony as executor and trustee of the Estate.[4]
2. June Patricia Burton, a paralegal employed by Williams + Hughes and manager of that firm's Geraldton office, deposes to the circumstances surrounding the execution of the Will.[5] Ms Burton is a member of the Australian Institute of Conveyancers WA Division. She has worked as a paralegal for over thirty years and for Williams + Hughes in their Geraldton Office since 2007. She deposes that, as part of her duties, she prepares wills and documents relating to probate under the supervision of one of the qualified lawyers in the firm.
3. The issues giving rise to the application for rectification of the Will are also set out in a letter from Williams + Hughes to Anthony dated 18 September 2024.[6] As summarised in the outline of submissions, the circumstances in which the Will came to be executed by Robert and the issues arising from its execution are, as follows:
   1. Robert engaged Williams + Hughes to draft a will for him in 2014. Ms Burton worked with a lawyer from the firm's Perth office, Christopher Osborn, in relation to preparation of that will, which was subsequently executed and is dated 7 November 2014 (2014 Will).
   2. By the 2014 Will prepared by Williams + Hughes, Robert, amongst other things, left 50% of his share and interest in the Partnership of Seaview Farms (as defined in the 2014 Will) to Jupp Nominees Pty Ltd as trustee for The Robert Jupp Family Trust, and his remaining 50% share and interest to Horricks Holdings Pty Ltd as trustee for The G A Lucas Family Trust.
   3. The relevant provision of the 2014 Will, clause 6, provided:

(a) fifty percent (50%) of my share and interest in the Partnership of Seaview Farms to Jupp Nominees Pty Ltd (ACN 051 911 801) as trustee for The Robert Jupp Family Trust.

(b) fifty percent (50%) of my share and interest in the Partnership of Seaview Farms to Horricks Holdings Pty Ltd (ACN 056 267 728) as trustee for The G.A. Lucas Family Trust.

(c) all of my shares in Jupp Investments Pty Ltd (ACN 056 212 401) to Jupp Nominees Pty Ltd (ACN 051 911 801) as trustee for The Robert Jupp Family Trust;

(d) all of my shares in Jupp Nominees Pty Ltd (ACN 051 911 801) to Anthony;

(e) an undivided 5/7 share of the proceeds from all life insurance policies held by me for Anthony for his own use and benefit; and

(f) an undivided 2/7 share of the proceeds from all life insurance policies held by me for Roberta for her own use and benefit,

but if any of these gifts fail, then the portion of my estate comprised in that gift or those gifts will fall into and form part of the residue of my estate and be distributed in accordance with clause 7, if my wife MARGARET ANN JUPP (Margaret) survives me by a period of 28 days, or in accordance with clause 8 if Margaret does not survive me for a period of 28 days.

1. In 2015, after making the 2014 Will, Robert acquired a property at 51 Glance Street, Horrocks WA (Horrocks Property).
2. On 22 August 2019, Ms Burton met with Robert who gave instructions to make changes to the 2014 Will. He provided instructions to Williams + Hughes to the effect that:

(a) all (100%) of his share and interest in the Partnership of Seaview Farms was to be given to Jupp Nominees Pty Ltd as trustee for The Robert Jupp Family Trust instead of 50% to the Jupp Nominees Pty Ltd as trustee for The Robert Jupp Family Trust and 50% to Horricks Holdings Pty Ltd as trustee for The G A Lucas Family Trust; and

(b) he wanted to leave the Horrocks Property to his son, Anthony.

1. A draft of the proposed new will was prepared by Willilams + Hughes in October 2019, by marking up changes to the 2014 Will. A copy of the draft marked up will showing the changes made to the text of the 2014 Will is attached to the Burton Affidavit.[7] The draft was sent to Mr Osborn, who Ms Burton had worked with in preparing the draft and the earlier 2014 Will, to review and he approved the draft.[8]
2. Clause 6 of the draft proposed new will was marked up so as to amend the relevant provisions to read:

(a) my share and interest in the Partnership of Seaview Farms to Jupp Nominees Pty Ltd (ACN 051 911 801) as trustee for The Robert Jupp Family Trust;

(b) [the provision giving 50% of share and interest in the Partnership of Seaview Farms to Horricks Holdings Pty Ltd as trustee for The G A Lucas Family Trust was deleted in its entirety];

(c) all of my shares in Jupp Investments Pty Ltd (ACN 056 212 401) to Jupp Nominees Pty Ltd (ACN 051 911 801) as trustee for The Robert Jupp Family Trust;

(d) my interest in 51 Glance Street, Horrocks and all of my shares in Jupp Nominees Pty Ltd (ACN 051 911 801) to Anthony;

(e) an undivided 5/7 share of the proceeds from all life insurance policies held by me for Anthony for his own use and benefit; and

(f) an undivided 2/7 share of the proceeds from all life insurance policies held by me for Roberta for her own use and benefit,

but if any of these gifts fail, then the portion of my estate comprised in that gift or those gifts will fall into and form part of the residue of my estate and be distributed in accordance with clause 7, if my wife MARGARET ANN JUPP (Margaret) survives me by a period of 28 days, or in accordance with clause 8 if Margaret does not survive me for a period of 28 days.

1. The marked-up amendments reflected Robert's instructions given to Ms Burton on 22 August 2019.
2. In October 2019, Ms Burton met with Robert at the firm's Geraldton office and went through the marked up revised draft with him, and he approved the draft.[9]
3. Williams + Hughes had also been instructed by Margaret to make changes to her will. On 15 November 2019, Robert and Margaret attended Williams + Hughes' Geraldton office to sign their updated wills.[10]
4. Due to a clerical error, instead of printing out a clean copy of the new draft will for execution, a clean copy of the 2014 Will (without the marked-up changes having been incorporated) was mistakenly printed out by administrative staff and provided for Robert to sign. He signed the will presented to him, which was a printout of an unedited, unexecuted version of the 2014 Will. The changes he had approved to clause 6 of the 2014 Will were not included. Robert took the original of the signed 2019 Will away with him.[11]
5. Although the 2019 Will was signed and witnessed on 15 November 2019, it is incorrectly dated 2014. The year '2014' is in print. The rest of the date, '15 November', is written by hand.
6. As a consequence of inadvertently signing the incorrect version, the Will (signed by Robert on 15 November 2019 but incorrectly showing the date as 15 November 2014) did not incorporate Robert's instructed changes to the provisions of the earlier, 2014 Will.
7. The matters referred to did not come to the attention of the parties until after Robert's death when Williams + Hughes, who were engaged to seek probate of the Will, on behalf of the plaintiff as executor, and realised the error that had been made. A copy of the Will is annexed to the Jupp Affidavit.[12]
8. The plaintiff instructed Williams + Hughes in relation to an application for probate in late February or early March 2024.[13] Ms Burton deposes to steps taken by Williams + Hughes in relation to preparing an application for probate and to delays in preparing the documents.[14]
9. On 19 September 2024, the plaintiff was made aware of the clerical error by a letter received from Williams + Hughes.[15]
10. It is submitted that, as a result of a clerical error, the Will, which was a printout of the earlier 2014 Will, does not reflect the terms of the will that Robert had instructed Williams + Hughes to prepare in 2019.
11. The plaintiff seeks an order rectifying the Will so as to reflect Robert's intentions and the instructions given by him in respect of the changes he intended to make to his will in 2019.

Section 50 of the Wills Act 1970 (WA)

1. Section 50 of the Act provides:
   1. Court may rectify will

(1) The Court may make an order rectifying a will to carry out the intentions of a deceased testator if the Court is satisfied that the will does not carry out the testator's intentions because -

(a) a clerical error was made; or

(b) the will does not give effect to the testator's instructions.

(2) Any application for an order under this section must be made within 6 months after the death of the testator.

(3) The Court may extend the period of time for making an application, even if the original period has expired, but not if the final distribution of the estate has been made.

(4) A certified copy of an order under this section must be attached to the original will and to the probated copy of the will.

1. As is clear from the text of s 50 of the Act, before making an order for rectification, the court must be satisfied that the will does not express the testator's testamentary intentions because of a clerical error or because of a failure to give effect to the testator's instructions.
2. 'Clerical error' is not defined in the Act. In Re Estate of Luttrell,[16] Harris J considered the concept of the term in his determination of an application for rectification of a will under s 31 of the Wills Act 1937 (Vic), which is in substantially the same terms as s 50 of the Act. In doing so, his Honour drew on the decision of Marley v Rawlings,[17] in which Lord Neuberger, sitting as president of the Supreme Court of the United Kingdom said, in relation to the question of what may constitute a clerical error:[18]

The best judicial summary of the effect of the cases so far decided on section 20(1)(a) was given by Blackburne J in Bell v Georgiou [2002] EWHC 1080; [2002] WTLR 1105, para 8 (quoted in para 7-42 of Hodge on Rectification):

"The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert ... The remedy is only available if it can be established not only that the will fails to carry out the testator's instructions but also what those instructions were".

If, as a result of a slip of the pen or mistyping, a solicitor (or a clerk or indeed the testator himself) inserts the wrong word, figure or name into a clause of a will, and it is clear what word, figure or name the testator had intended, that would undoubtedly be a clerical error which could be rectified under section 20(1)(a). ...

1. As stated by Harris J in Re Estate of Luttrell,[19] Lord Neuberger observed that the expression 'clerical error' may have a narrow meaning 'limited to mistakes involved in copying or writing out a document', but that:[20]

... the expression is not one with a precise or well-established, let alone a technical, meaning. The expression also can carry a wider meaning, namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of, a document (save, possibly, to the extent that the activity involves some special expertise). Those are activities which are properly be described as "clerical", and a mistake in connection with those activities, such as wrongly filing a document or putting the wrong document in an envelope, can properly be called "a clerical error".

For present purposes, of course, "clerical error" is an expression which has to be interpreted in its context, and, in particular on the assumption that section 20 is intended to represent a rational and coherent basis for rectifying wills. While I appreciate that there is an argument for saying that it does nothing to discourage carelessness, it seems to me that the expression "clerical error" in section 20(1)(a) should be given a wide, rather than a narrow, meaning.

1. The matters the court must be satisfied of before making an order to rectify a will were recently summarised by Cobby J in Australian Executor Trustees Ltd v Fermoyle,[21] as follows:

(a) the testator's testamentary intentions at the time the will was made;[22]

(b) that the will, as drafted, on a proper construction, does not give effect to the testator's testamentary intentions;[23]

(c) that the will does not express the testator's testamentary intentions because of a clerical error or because of a failure to give effect to the testator's instructions; and

(d) the proposed rectification is in a form that gives effect to the testator's intentions.[24]

1. As observed by Pritchard J[25] in Lauder, the standard of proof that applies in determining the testator's intention at the time of making the will, is on the balance of probabilities.[26] Her Honour observed that it has been said that 'clear and convincing proof' of the testator's intention will be required in order to displace the presumption that arises on due execution, namely that the testator knew and approved of the will's contents.[27]
2. The evidence of a practitioner who received the testator's instructions will carry significant weight in determining what a testator's instructions were at the time they gave them and executed the will and will often be determinative of a testator's intentions.[28]

1. The plaintiff requires and seeks leave to extend the time for bringing the Application.
2. Leave is required because an application under s 50 of the Act for rectification of a will must be made within six months after the death of the testator.[29] The Application was filed on 19 November 2024, approximately one year after Robert's death.
3. The court may extend the period of time for making an application even if the original period has expired, but not if a final distribution has been made.[30]
4. The court has a wide discretion to extend time. Factors relevant to the exercise of the court's discretion include:[31]

(a) the length of the delay;

(b) the reason for the delay;

(c) the prospects of the application;

(d) the interests of justice; and

(e) the nature and extent of any prejudice caused to interested persons.

1. The reasons for the delay in bringing the Application are, in essence, that the error was not detected by Williams + Hughes until 5 August 2024, and the plaintiff was not made aware of the error until he received a letter from Williams + Hughes on 19 September 2024, approximately 10 months after Robert's death.[32]
2. The plaintiff was advised in that letter that he should obtain independent legal advice. He acted promptly and met with Ms Ware on 26 September 2024 and gave her the letter he had received. He met with her again shortly after, on 10 October 2024.[33]
3. Ms Burton swore her affidavit on 13 November 2024 and the plaintiff swore his affidavit in support of the Application on 15 November 2024. The Application was filed on 19 November 2024, within two months of the plaintiff being informed of the error.
4. Probate of Robert's estate has not yet been granted, and no distribution of Robert's estate has been made.[34] There is no suggestion that any party is prejudiced by the delay in making the Application. The defendants, the parties whose interests under the Will are affected by the relief sought, have each indicated their consent to the orders sought in the Application.
5. In the circumstances, I am satisfied that the time for making the Application should be extended to the date it was filed.

1. It was submitted on behalf of the plaintiff that Robert's clear intention at the time of executing the Will, based on the instructions given to William + Hughes in 2019, were to:

(a) leave 100% of his share and interest in the Partnership of Seaview Farms to Jupp Nominees Pty Ltd as trustee for the Robert Jupp Family Trust; and

(b) leave Anthony the property at 51 Glance Street, Horrocks which Robert acquired in 2015.

1. I am satisfied on the evidence before the court, and accept the plaintiff's submissions, that Robert's intentions are evidenced by the instructions he gave to Ms Burton on 22 August 2019 and were also confirmed by Robert when he approved a draft will, which incorporated those instructions, on 16 October 2019.[35]

The will as drafted, on a proper construction, does not give effect to the testator's testamentary intentions

(a) 50% of Robert's interest in the Partnership of Seaview Farms is given to Horricks Holdings Pty Ltd as trustee for The G A Lucas Family Trust instead of all (100%) of the share and interest being given to Jupp Nominees Pty Ltd as trustee for the Robert Jupp Family Trust; and

(b) the Horrocks Property falls into the residue of the Estate for the benefit of Margaret, instead of being gifted to Anthony as instructed by Robert.

1. The Will does not therefore give effect to Robert's testamentary intentions and does not reflect the instructions he gave in respect of the changes he wanted to make to the 2014 Will and that he approved.

The Will does not express the testator's testamentary intentions because of a clerical error

1. Ms Burton deposes that an administrative staff member of Williams + Hughes erroneously printed out for execution a clean copy of the 2014 Will, which was drafted to reflect earlier instructions Robert had provided in 2014, instead of a copy of the most recently revised draft from the instructions given in August 2019 and confirmed in October 2019.[36] The Will, as executed, does not give effect to Robert's testamentary intentions.
2. Applying the rationale referred to in Marley v Rawlings, I am satisfied this was due to a clerical error, as outlined.

The proposed rectification is in a form that gives effect to the testator's intentions

1. The plaintiff proposes the Will be rectified by:

(a) varying clause 6(a) of the Will to delete the words 'fifty percent of' so that clause 6(a) now reads '(a) my share and interest in the Partnership of Seaview Farms to Jupp Nominees Pty Ltd (ACN 051 911 801) as trustee for the Robert Jupp Family Trust';

(b) deleting clause 6(b) of the Will; and

(c) varying clause 6(d) of the Will by adding at the start of the clause the words 'my interest in 51 Glance Street Horrocks and', so that clause 6(d) now reads: '(d) my interest in 51 Glance Street Horrocks and all of my shares in Jupp Nominees Pty Ltd (ACN 051 911 801) to Anthony'.

1. The proposed variations set out above, if made, are consistent with the instructions given by Robert to his lawyers and with the marked up copy of the 2014 Will that Robert approved, and will give effect to Robert's instructed testamentary intentions.

1. For these reasons, I am satisfied that orders should be made substantially in the terms sought. Subject to hearing from the plaintiff as to the final form of orders to be made, I will make the following orders:

1. Pursuant to s 50(3) of the Wills Act 1970 (Act), it is ordered that the time for making this application for an order under s 50(1) of the Act for rectification of the last will of the late Robert George Jupp (Deceased) signed on 15 November 2019 (and incorrectly dated 15 November 2014) (Will) be extended to the date of filing of the Application. 2. Pursuant to s 50(1) of the Act, it is ordered that the Will be rectified to carry out the testamentary intentions of the Deceased by:

(a) varying clause 6(a) of the Will by deleting the words 'fifty percent 50% of' so that clause 6(a) now reads:

'my share and interest in the Partnership of Seaview Farms to Jupp Nominees Pty Ltd (ACN 051 911 801) as trustee for the Robert Jupp Family Trust';

(b) deleting clause 6(b) of the Will; and

(c) varying clause 6(d) of the Will by adding at the start of that clause the words 'my interest in the property at 51 Glance Street, Horrocks and', so that clause 6(d) now reads:

'my interest in the property at 51 Glance Street, Horrocks and all of my shares in Jupp Nominees Pty Ltd (ACN 051 911 801) to Anthony'.

1. A certified copy of these orders shall be lodged together with the original Will in support of an application for a grant of probate of the Will and attached to the probated copy of the Will upon a grant of probate being made.
2. In my view, it is appropriate in the circumstances of this case that the costs of the Application be paid out of the Estate on an indemnity (solicitor/client) basis.
3. I will hear from the plaintiff as to the final form of the orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Ware Affidavit [2] - [5], 'A', 'B', 'C', 'D'.

[12] Jupp Affidavit [3], 'AJ 2': A true copy of the Will is also attached as Attachment A to the Burton Affidavit.

[15] Jupp Affidavit [8] - [9], 'AJ 3'.

[16] Re Estate of Luttrell [2024] VSC 598 [14] - [18] (Harris J), observing that there is limited consideration of the concept of 'clerical error' in the context of rectification of wills in Australia, save that existing authority refers to the width of the concept in England. See for example Reeves v Reeves [2024] NSWSC 134 [421] ‑ [428] (Meek J), and the authorities referred to.

[17] Marley v Rawlings [2014] UKSC 2; [2015] AC 129.

[18] Marley v Rawlings 153, [71] - [72] (Lord Neuberger, with whom Lords Clarke, Sumption and Carnwath agreed).

[20] Marley v Rawlings 153 - 154, [75] - [76].

[21] Australian Executor Trustees Ltd v Fermoyle [2024] WASC 209 [19].

[22] Vescio v Bannister [2010] NSWSC 1274; (2010) 3 ASTLR 619 (Vescio v Bannister) [12] ‑ [15]. See also Palethorpe v Public Trustee of Queensland [2011] QSC 335 (Palethorpe) [18]; Estate of Grahame David Wright [2016] NSWSC 1779 [37]; Lauder v Lauder [2018] WASC 91 (Lauder) [22] - [25]; Shirdon v Cox [2019] WASC 433 [9].

[23] ANZ Trustees Ltd v Hamlet [2010] VSC 207 [3]; Vescio v Bannister [14]. See also Palethorpe [15], [18].

[26] Lauder [25]. See also Hinds v Collins [2006] 1 Qld R 514; [2005] QSC 362 [9].

[32] Burton Affidavit [24]; Jupp Affidavit [9].

[35] Burton Affidavit [7] - [8], [12].