The Estate of Terence Byrne; Osborne v Stewart [2020] NSWSC 507

Supreme Court New South Wales

Medium Neutral Citation: The Estate of Terence Byrne; Osborne v Stewart [2020] NSWSC 507 Hearing dates: In Chambers and on the papers Date of orders: 08 May 2020 Decision date: 08 May 2020 Jurisdiction: Equity Before: Hallen J Decision: The Court:

1. Orders that the Will dated 4 September 2015 of Terence Michael Byrne (the deceased) be rectified by including after "insurances thereon" in Clause 3 thereof the words:

"…and after the death of the said MARCIA ROBIN OSBORNE, to my children and if more than one in equal shares as tenants in common, for their own use and benefit absolutely provided that they survive me for a period of Thirty (30) days and IN THE EVENT that any of them fail to survive me and attain a vested interest but leaving children THEN I DIRECT that such children shall take the share his her or their parent would have taken upon their attaining the age of eighteen (18) years and if more than one in equal shares as tenants in common."

2. Orders subject to compliance with the Probate rules of Court that the Will dated 4 September 2015 of the deceased, as rectified, be admitted to Probate.

3. Orders that Probate of the Will dated 4 September 2015 of the deceased, as rectified, be granted to the Plaintiffs.

4. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.

5. Makes no order as to the costs of any party to the intent that each will bear her, or his own costs, respectively, of the proceedings.

6. Orders that the directions hearing before the Succession List Judge on 11 May 2020 be vacated. Catchwords: SUCCESSION – Probate and administration – Rectification of wills – Where Will does not carry out the testator's intentions because the will does not give effect to the testator's instructions – Claim for rectification of Will under s 27 of the Succession Act 2006 (NSW) – Principles relevant to rectification –Where instructions for the Will given by deceased to his solicitor – Whether the Will does not give effect to the deceased's instructions Legislation Cited: Succession Act 2006 (NSW), s 27 Wills, Probate and Administration Act 1898 (NSW), s 29A Cases Cited: Estate of Aspasia Kandros [2019] NSWSC 757 Category: Principal judgment Parties: Marcia Robin Osborne (First Plaintiff) Kirry Elizabeth Toose (Second Plaintiff) Phillippa Kim Stewart (First Defendant) Jayne Deborah Morton (Second Defendant) Anthony James Byrne (Third Defendant) Michelle Lois Byrne (Fourth Defendant) Representation: Counsel: P P O'Loughlin (Plaintiffs)