Clerical error leads to litigation

JANINE has two children that she raised as a single mother after her and her partner separated in the 1980s. She has not seen her ex-partner since their children turned eighteen.

When Janine was in her late 60s, she met, fell in love with and became engaged to a man named Paul.

Before the wedding, Janine instructed her solicitor to make a Will appointing her two children as her executors and naming them as the sole beneficiaries of her estate.

Janine and Paul had discussed Janine’s proposed Will and agreed that it would be for the best.

When asked by her solicitor why she was leaving Paul out of her Will, Janine said, “Paul is very well off and he doesn’t need anything from me.”

When Paul was in his early 80’s he was diagnosed with dementia and Janine became his carer until she unfortunately passed-away two years later.

Janine’s children took a copy of her Will to a solicitor who specialises in estate law.

The solicitor informed them that the Will did not contain a clause stating that it was “made in contemplation of marriage” and was therefore revoked in accordance with the Succession Act, when Janine and Paul were married.

The bad news continues when the solicitor informs them that, “Given that Janine’s estate is worth about $400,000, the entire estate would ordinarily pass to Paul.”

After three years and thousands of dollars, the specialist solicitor is eventually able to prove in the Supreme Court that the omission of the words “made in contemplation of marriage” in the original Will was a “clerical error”.

The Court orders that the original Will be amended to finally give effect to Janine’s wishes.

The additional time, costs and stress would have been avoided had Janine initially gone to a solicitor who was experienced in estate planning.

Thank you to Jamie Visco for his assistance with this column.

Email Manny Wood, principal solicitor at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

This column cannot be relied upon as legal advice.

By Manny WOOD, Solicitor