Reilly v Reilly [2017] NSWSC 1419

Supreme Court New South Wales

Medium Neutral Citation: Reilly v Reilly [2017] NSWSC 1419 Hearing dates: 22, 23 and 24 August and 1 November 2016 Decision date: 20 October 2017 Jurisdiction: Equity - Probate List Before: Lindsay J Decision: Subject to allowing the parties an opportunity to make submissions about the form of orders to be made and orders for costs:

(1) The Will of the deceased is to be rectified to insert the name of the plaintiff as beneficiary of the property known as "Boronga".

(2) A grant of administration of the estate of the deceased, with the Will as rectified annexed, is to be made to the plaintiff.

(3) Having actively participated in breaches of fiduciary obligations owed to the deceased by the first defendant (as an enduring attorney of the deceased, consequent upon her unauthorised transfer of "Boronga" to them for no consideration) the second, third, fourth and fifth defendants hold "Boronga" on trust for the estate of the deceased.

(4) Conditional upon their re-conveyance of "Boronga" to the estate of the deceased, family provision relief, in the form of differential legacies charged on "Boronga", is to be granted to each of the second, third, fourth and fifth defendants.

(5) As agreed between the plaintiff and the second, third, fourth and fifth defendants, the partnership between them known as "the Shadrack Partnership" is to be dissolved by an order of the Court and any disputes between the partners upon the taking of partnership accounts are to be determined by arbitration in accordance with the partnership deed.

(6) Upon an assumption that "Boronga" is re-conveyed to the estate of the deceased, no more than nominal awards of compensation are to be made against the first defendant (for breach of fiduciary obligations owed by her to the deceased) or the sixth defendant (for breach of a common law duty of care owed by him to the plaintiff). Catchwords: SUCCESSION - Administration of Estates – Probate – Rectification of Will – Will prepared by solicitor – Clerical error, and failure to give effect to testator's instructions, in will preparation – Accidental omission of name of beneficiary – Rectification granted.