Page 4104 - Week 14 - Tuesday, 22 October 1991
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be revoked. She then agreed to leave the revocation clause there. On her death the court held that her will had been revoked. The court regretted that it was forced to a conclusion that would not carry out her obvious intentions.
Clearly, new section 12A will enable the ACT Supreme Court to rectify such a will. If the court is satisfied that the probate copy of the will of a testator is so worded that it fails to carry out his or her intentions, it may order that the will be rectified to carry out the testator's intentions.
A frivolous example of a situation where the true intention of a testator could probably be established and given effect to is as follows:
I direct that in the event of my death my body be cremated and the ashes strewn on position X, garden lot B in Springvale Crematorium. I further direct my trustee to place on the said position a suitable plague.
The testator's intention would be clear. He did not intend to revisit himself with the plague. Clearly, the court should be able to hold that he meant "plaque". We are dealing with something where the words are taken very seriously and literally.
Subsection (2) of the same section, 12A, is, we believe, new to the common law. Continental European systems have a power like that given in this subsection. It allows the ACT Supreme Court to rectify a will to give effect to the probable intention of the testator when circumstances arise which the testator did not know of, anticipate or appreciate, or which arose after his or her death. Sometimes a court can be morally sure of what a testator wanted to do, but owing to changed circumstances the will does not give effect to those intentions. Under the existing law of construction of wills, the courts are often unable to come to a satisfactory conclusion and the plans of the testator are shipwrecked.
One example will suffice. In Davis v. Worthington, reported in 1978, a testatrix left a gift to "my friend, Aldo Pace", and if he failed to survive her for 14 days, to the Muscular Dystrophy Research Association. But, in fact, Aldo murdered the testatrix and so could not inherit from her because of the rule of public policy which prevents a murderer from inheriting from his or her victim.
But what about the Muscular Dystrophy Research Association? Do they miss out too because the donor got murdered? Well, they were to inherit only if Aldo had failed to survive the testatrix. He had survived her by more than 14 days. It is plain to a reasonable observer that the testatrix would have wanted the Muscular Dystrophy Research Association to inherit in the circumstances, but the Western Australian Supreme Court held that the gift to the association failed.
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