CASE NOTE: Re Will of McCowen [2013] NSWSC 1000

In this case Mr McCowen engaged a Solicitor to draft his Will. He told the Solicitor that he wished to benefit his third wife, give $1,000 to each of his three children from his second marriage, and that he wanted his residuary estate to be shared by the three children from his first marriage. The Solicitor directed her paralegal to prepare a Will based on her notes from the meeting. The paralegal misread the Solicitor’s notes and drafted the Will for all six of Mr McCowen’s children to share the residue equally. The Will was signed, and Mr McCowen died before the mistake was noticed.  The applicant sought rectification of the Will as it was not in accordance with Mr McCowen’s instructions.

Justice Young found that the Will prepared from the paralegal’s misreading of the Solicitor's notes was a 'clerical error’ and falls within the Court’s power to rectify a Will under Section 27 of the Succession Act 2006 (NSW).  His Honour noted that the term "clerical error" has been widely interpreted, and “not only covers errors in the process of recording the intended words of the testator, but also extends to situations where the person drafting the Will has not appreciated the significance or effect of the introduction (or deletion) of a particular provision.” His Honour further noted “that remedial legislation should be liberally construed”.

The Court was satisfied the Will did not give effect to the testator’s intentions and made an order to rectify the clerical error in the Will.

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