Leave Nothing to Error: Why Getting Your Will Right Matters

On the death of her sister, Julie Kaye Hayes (Ms Hayes) filed an originating summons in the Supreme Court of Western Australia on 7 August 2026 seeking rectification of the Will of her late sister, Robyn Lee Wood (Ms Wood), dated 12 May 2025 (Will).  Ms Hayes sought to correct clerical errors in the Will so that it gave effect to Ms Wood’s intentions.

The central error concerned was clause 6 which provided that the residuary beneficiary of the Will was the deceased herself, rather than Ms Hayes.¹

The solicitor who originally took instructions from Ms Wood and prepared the Will verified in her affidavit that Ms Wood’s instructions were to the effect that Ms Hayes is to receive the entire estate.²   As a result, the reference to Ms Hayes as the beneficiary in clause 6 of the Will was not consistent with instructions and the result of a clerical drafting error.³

Legal principles

Master Russell’s decision in Hayes v Hayes⁴ reiterates the principles governing an application to rectify a will where, due to a clerical error, the will fails to give effect to the testator’s intentions.⁵

Particular reference was made to the summary of principles contained in her previous decision in Jupp v Jupp [2025] WASC 315 at [22] quoting Cobby J in Australian Executory Trustees Ltd v Fermoyle [2024] WASC 209 at [19] being:⁶

That the court must be satisfied with the following principles before making an order to rectify a will:

• the testator’s testamentary intentions at the time the will was made;⁷
• that the will, as drafted, on a proper construction, does not give effect to the testator’s testamentary intentions;⁸
• 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
• the proposed rectification is in a form that gives effect to the testator’s intentions.⁹

The testator’s intention in these matters is determined by the Court on the balance of probabilities.¹⁰

In addition, ‘clear and convincing proof’¹¹ of the testator’s intention is necessary to displace the presumption that the testator knew and approved of the will’s contents at the time of its execution.¹²

However, the evidence of a legal practitioner who received the testator’s instructions carries significant weight and may often be determinative of a testator’s intentions.¹³

The decision

Master Russell ultimately found that she was satisfied on the evidence of the solicitor who took instructions from Ms Wood, and prepared the Will, that Ms Wood intended Ms Hayes to receive the residue of the estate and that the references to herself in clause 6 were a result of clerical error.¹⁴

In the absence of any reference to other evidence or material before the Court, it appears that the solicitor’s evidence was sufficient to establish the testator’s intention and the clerical error.

Accordingly, Master Russell made orders to rectify the Will¹⁵ and for the costs of the application to be paid our Ms Wood’s estate.¹⁶

Take aways

The case is a useful reminder of the significant importance for lawyers to establish their client’s intention when preparing a respective will.

The failure of the lawyer to do so in this instance resulted in the estate’s ‘relatively modest’ value¹⁷ wasting away precious time and money, which were avoidable if the necessary care and attention was provided to unequivocally establish the client’s wishes.

Further, the decision confirmed that, where there were clear notes of the actual intention and instructions, an inadvertent error may be corrected. In the absence of such evidence, rectification may fail.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.

Footnotes