2 The relevant sequence of events is set out in an affidavit in support of the rectification application sworn by Geoffrey Arthur Park on 10 November 2004. Mr Park was the testatrix's solicitor and is the other person named as executor in the will. He is a solicitor of considerable experience and is a partner in the firm McKean & Park.

3 The testatrix first consulted Mr Park in 1990. She gave instructions for the preparation of a will. After a number of specific bequests she instructed Mr Park that her estate was to be divided into 100 units, 70 of those 100 units were to go to ten named people, who were to receive seven units each, and the balance were to be shared equally between seven other people. In due course Mr Park drew up a will providing for dispositions to that effect.

4 In July 1994 the testatrix consulted Mr Park again. Mr Park went to the testatrix's home and was given two handwritten sheets containing instructions for a new will. These sheets are Exhibit "GAP 8". The relevant portion of those sheets provided that her "financial assets" were to be divided into 100 equal parts, with 25 parts to go to Anne Carr, 25 parts to Adrienne Barrington-Higgs, "6 parts each to" five named individuals, and "5 parts each to" four named individuals.

5 On the handwritten sheets next to the section referring to 25 parts to Anne Carr and to Adrienne Barrington-Higgs is a note in Mr Park's handwriting which reads:

"and if not survived then add on to the 11 parts below in those proportions."

Next to the reference to the persons to receive "6 parts each" is a note by Mr Park which reads "such of them that survive you", and next to the list of persons who are to receive "5 parts each" is a note by Mr Park which reads "such of them that survive you". In Mr Park's affidavit he deposes as follows:

"I discussed these two sheets with her at the time. With my own pen and in my own handwriting I added some notes to the first sheet, those notes accordingly not being Dyranda's instructions . . ."

When I queried this passage with counsel for the plaintiff she told me that Mr Park's additions were a "note to himself". It was foreshadowed at one point that Mr Park would give oral evidence to explain the position, but as matters transpired that course was not taken.

6 Mr Park then drew up a will which the testatrix executed on 18 August 1994. The will made some specific provisions and then dealt with the testatrix's residual estate, providing that after payment of debts and other expenses her trustees were to:

"divide the balance of money and any unconverted estate ('my residuary estate') into one hundred parts to be held as follows:

● to pay or transfer twenty five parts to ADRIENNE BARRINGTON-HIGGS

● to pay or transfer six parts to such of them that survive me equally namely JUSTIN BARRINGTON-HIGGS, DANIEL BARRINGTON-HIGGS, BENJAMIN BARRINGTON-HIGGS, NATALIA DUSHKINA (of Moscow, via Australian Embassy) and ROSEMARY O'GRADY

● to pay or transfer five parts to such of them that survive me equally FIONA HORNSBY, SABINA HORNSBY, SUSAN OZZARD and ROSANNE FULLER

AND I DECLARE that should ANN CARR or ADRIENNE BARRINGTON-HIGGS predecease me then the parts given to the predeceasing one shall not lapse but shall be divided between the six parts and five parts in the same proportions as one bears to the other."

7 Mr Park has sworn that he made a mistake in drafting this will. He deposes as follows:

"The written instructions in the two sheets of handwriting, being exhibit "GAP 8" given to me by Dyranda setting out her instructions clearly divide her residuary estate into 100 parts. It is through my own drafting error that I have made that area of the 1994 will have the effect that, instead of 6 parts going to each of the 5 named persons and 5 parts going to each of the 4 named persons, I have made the will read with the effect that 6 parts go to such of them (the 5 named persons) that survive and the other 5 parts go to such of them (the other 4 named persons) that survive, thereby only effectively disposing of 11 parts to those persons instead of 50 parts to those persons. In total the 1994 Will disposed of 61 parts of 100 parts. Clearly the words as drafted do not follow the instructions as written by Dyranda in her written instruction comprising Exhibit "GAP 8" hereof. The only reason I can give for changing the word "each" to "such" and then adding the word "equally" is that in the greater majority of Wills prepared by me, the phrase "to such of them" is included and I have done this without proper thought and attention on this occasion. I accept that the changed words are not ones that the non-lawyer would pick up as to the changed effect, such person concentrating on whether the right people were benefiting."

8 Mr Park's description of the error he made is that he changed "each" to "such" and added the word "equally". He says that these changes meant that his draft did not follow the instructions "as written by Dyranda". However, if it is accepted, as Mr Park has sworn, that the notes he made on the two handwritten sheets (GAP 8) were not Dyrandra's instructions, then he also failed to follow her instructions by including the words "that survive me".

9 In 1996 the testatrix made a codicil to her will. She wished to exclude Fiona Hornsby and Sabina Hornsby. The relevant part of the codicil which she executed on 15 August 1996 reads as follows:

"In clause 3.2 of my will where I have provided to pay or transfer 5 parts of 100 parts to FIONA HORNSBY and SABINA HORNSBY along with two other persons I now revoke the gift to FIONA HORNSBY and SABINA HORNSBY so that the said 5 parts should be left only to such of SUZANNE OZZARD and ROSANNE FULLER that survive me equally."

10 Mr Park deposes that the 1996 codicil "did not rectify the fault in the fractions that originated from the 1994 will". It would probably be more correct to say that the 1996 codicil repeated what are said to be the errors in the 1994 will.

11 In 1997 the testatrix consulted Mr Park again. A new will was drafted. In the first draft there were no changes to the residuary beneficiaries. After consideration of that draft the testatrix decided to delete Rosemary O'Grady from the group of five receiving six parts.

12 In due course the last will of the testatrix was executed on 22 December 1997. The relevant clause was in exactly the same terms as that of the 1994 will as set out in para 6 above, save that the group referred to by reference to six parts is now four persons rather than five, Rosemary O'Grady having been deleted; and the group previously four persons and altered by codicil to two by the removal of Fiona and Sabrina Hornsby remains two.

13 In relation to the drafting of the 1997 will, Mr Park deposes as follows:

"Despite deleting a residuary beneficiary, the previous drafting error that originated in the 1994 Will had the effect, that the draft 1997 Will still only effectively disposed of 61 of 100 parts of residue. I should have used the words '6 parts to each of them that survive me namely' and used the words '5 parts to each of them that survive me namely' and changed the words '100 parts' to '84 parts'."

14 A number of observations ought to be made in relation to this description of the error. First, Mr Park's description of what he ought to have done includes provision for a requirement that the recipients survive the testatrix which he deposes reflected his own note and not the testatrix's written instructions. Second, the error whereby "each" became "such" has now had further ramifications by the deletion of persons from the groups. In order to accurately reflect his instructions Mr Park says he ought to have altered "100 parts" to "84 parts". Next, Mr Park does not address the effect which an alteration of 100 parts in total to 84 would have had on the dispositions to Anne Carr and Adrienne Barrington-Higgs, being to increase their share from 25 100ths to 25 84ths. Finally, Mr Park does not address the express provision about Anne Carr and Adrienne Barrington-Higgs predeceasing the testatrix which, on his affidavit as explained by the plaintiff's counsel, also reflects his own notes and not the testatrix's written instructions. I canvassed the consequences of the alterations suggested upon the dispositions to Ann Carr and Adrienne Barrington-Higgs with counsel for the plaintiff at some length in the course of the hearing.

15 The effect of the will as it stands is that the testatrix did not dispose of her entire residuary estate. The undisposed of portion will go on intestacy. I was told in this application that in that circumstance the testatrix's mother, Mrs Joan Prevost, would take that portion. Mrs Joan Prevost has been served with this application. In correspondence with the executors she has indicated that she would abide the outcome of this proceeding. She also indicated that if a disputed loan to her was forgiven then she would consent to the rectification application. In a letter which she wrote directly to "the Judge in the Practice Court" dated 15 November 2004, and which counsel for the plaintiff said I should place upon the file, which I have done, she indicated that she opposed the application, stating "I would benefit greatly from any inheritance from my daughter's partial intestacy".

16 It seems to me that the following conclusions can be reached:

1. A mistake was originally made in the drafting of the 1994 will which carried through to the 1996 codicil and the 1997 will. The mistake was the reference to "such" rather than "each" in the two lists of persons respectively receiving six and five parts of the residuary estate and the inclusion of the word "equally" in both relevant provisions.
2. On Mr Park's evidence, the requirement that the listed persons survive the testatrix was not part of her instructions. It nevertheless appears in the 1994 will and in the 1997 will. The evidence is not entirely clear on this point and the opportunity to clarify it was not taken up.
3. The further suggested "mistake", being the failure to reduce the total units to 84, raises separate problems. There is no evidence of the testatrix ever addressing that issue. Altering the total number of units alters the proportions. Anne Carr, for instance, would then receive 25 84ths instead of 25 100ths. There is no evidence that that was the testatrix's intention.

17 Counsel for the plaintiff gave me detailed written submissions. The applicable legal principles were set out in those submissions. It seems to me that the legal principles applicable here are the following:

1. Before the power of rectification can be exercised the Court must be satisfied that the will was so expressed that it failed to carry out the testatrix's intentions, and also what it was that the testatrix did intend concerning the part of the will which is to be rectified.[1]
2. What must be shown is what the testatrix's actual intention was, not what her intention probably would have been had she thought about the matter.[2]
3. Although the standard of proof is on the balance of probabilities, clear and convincing proof is required.[3]
4. It is not sufficient for rectification to establish that the testatrix would not have wished for an intestacy, or would not have wanted her property to go in a way that, in the events which have happened a particular clause results in the property going.[4]
5. If there is no evidence to show what the testatrix's intention was in the event of certain things happening, the Court cannot rectify the will.[5]

18 In the summons the rectification sought is as follows:

(i) in clause 3.2 of the will, at the eighth line delete the words "100" and replace them with the word "84";

(ii) in clause 3.2 of the will, at the twelfth line, delete the words "six parts to such of them that survive me equally" and replace them with the words "six parts to each of them that survive me";

(iii) in clause 3.2 of the will, at the sixteenth line, delete the words "five parts to such of them that survive me equally" and replace them with the words "five parts to each of them that survive me namely".

19 It should be noted that the requirement of survivorship would persist in the rectified will if relief were granted in accordance with the summons. The rectification sought in the summons treats Mr Park's handwritten notes on Exhibit "GAP 8" as being part of the testatrix's instructions. On this matter I had the following interchange with counsel for the plaintiff:

And what is right is GAP 8. She deleted three people in GAP 8.

So why then am I going to put the notes in when I rectify it?

Well, I suppose there may be other clauses in the will. Your Honour, if your Honour wishes to take those words out, I don't have an issue with that because, as I said, everyone survived her; it is not relevant, sir. If somebody had failed to survive her, that would be a different issue."

Counsel for the plaintiff indicated that she wished to file a further affidavit establishing that none of the residuary beneficiaries did predecease the testatrix. I permitted her to do that, and an affidavit to that effect, in somewhat qualified terms, was filed.

20 I am satisfied that a mistake was made in 1994 and that that mistake persisted into the 1997 will. I am also satisfied that the testatrix's actual intention was that each of the listed persons was to receive six parts or five parts as applicable. However, the application made goes too far in the rectification sought. Alteration of the total number of units from 100 to 84 is an issue the testatrix never addressed, and as to which I do not know the testatrix's intentions. If "rectified" that would alter the proportion of the residuary estate going to Anne Carr and Adrienne Barrington-Higgs and, indeed, to the listed persons (whether rectified or not). There is no evidence that that was the testatrix's intention.

21 The rectification sought preserves the survivorship provisions. This seems to be necessary as I am not satisfied that those requirements are a mistake by the testatrix. Whilst not part of her handwritten instructions the meaning of the words is clear and she signed two wills and a codicil which contain them. Even if I were satisfied that the survivorship provisions were a mistake, I do not know what the testatrix's actual intention was on that issue.

22 In a further submission delivered after the initial hearing counsel for the plaintiff submitted that on a proper construction of the 1997 will, six parts should go to each of the four named persons and five parts should go to each of the two named persons. In support of that construction she referred me to Ashman v McHugh,[6] where Osborn J was assisted in his construction of the will by an inference which he drew from the will as a whole that the testatrix there did intend to dispose of the whole of her estate.

23 After receiving the further submission I arranged for the matter to be re-listed. I did so because the further submission suggested I make a declaration as to the proper construction of the will. I asked whether the plaintiff wished to make an application for a declaration as to the construction of the will, as, if he did, I would require that to be done by a formal application on notice to those affected. Counsel advised me that the plaintiff only wished to proceed with the rectification application at this stage.

24 In the resumed hearing counsel for the plaintiff clarified her further submission. She submitted that even if the construction she had suggested were adopted, it would still be necessary to rectify the will by reducing 100 parts to 84 parts, otherwise a partial intestacy would still occur on the 1997 will.

25 There is much to be said for the construction advanced in the further submissions. In the circumstances, however, it seems to me that the will should be rectified so as to reflect the testatrix's clear intention that each listed person should take the five or six parts, and so as to put the matter beyond further doubt or argument. For the reasons given above, I will not, however, rectify to alter the total number of units and I will preserve the survivorship requirement. This means there will still be a partial intestacy, but of 16/100ths rather than 39/100ths. Accordingly, the will should be rectified in the manner sought in sub-paragraph (ii) and (iii) of paragraph 1 of the summons, but not in the manner sought in sub-paragraph (i).

26 Subject to any submissions as to form, the orders I propose are:

1. The will of Dyranda Judith Prevost, deceased, made on 22 December 1997 (being Exhibit "GAP-22" to the Affidavit of Geoffrey Arthur Park sworn 10 November 2004), be rectified in the following manner:

(a) in clause 3.2 of the will, at the twelfth line, delete the words "six parts to such of them that survive me equally" and replace them with the words "six parts to each of them that survive me";

(b) in clause 3.2 of the will, at the sixteenth line, delete the words "five parts to such of them that survive me equally" and replace them with the words "five parts to each of them that survive me namely".

1. Probate of the deceased's will made on 22 December 1997 be granted to Charles Moore Layborne Perry, the plaintiff in this proceeding, with leave reserved to the other Executor named in the will, Geoffrey Arthur Park, to come in at any time and prove the will.
2. A copy of this order, when authenticated, be attached to the said Grant of Probate.
3. The plaintiff's costs of obtaining the Grant of Probate be paid or retained out of the deceased Estate in accordance with the relevant Supreme Court Scale of Costs.
4. There be no order as to the plaintiff's costs incurred in making the rectification application before this Honourable Court.

1. [1] Rawack v Spicer [2002] NSWSC 849 at [26]; Re Estate of Dippert [2001] NSWSC 167 at [18]; Trimmer v Lax, unreported, Supreme Court of New South Wales, Hodgson J, 9 May 1997 at p 6.
2. [2] Trimmer v Lax, unreported, Supreme Court of New South Wales, Hodgson J, 9 May 1997 at p 6.
3. [3] Ibid.
4. [4] Rawack v Spicer [2002] NSWSC 849 at [26]; Trimmer v Lax, unreported, Supreme Court of New South Wales, Hodgson J, 9 May 1997 at p 6.
5. [5] Re Estate of Dippert [2001] NSWSC 167 at [18].
6. [6] [2004] VSC 232.