The UK Supreme Court has rectified a will where a husband and wife wrongly signed each other’s mirror wills. The Court held it could be rectified under the power to rectify a clerical error (Queensland has a similar power in s33 of the Succession Act).
At first instance and on the first appeal it had been held that such an error did not amount to a mere “clerical error”.
Of course, in Queensland, as in most Australian jurisdictions, the case would not have gone so far, as our Supreme Court has power (s18 of the Succession Act) to grant probate of wills that are not duly executed, if the testator intended the document to be their will. As such rectification would not have been necessary.
The case contains a good discussion, at a high appellate level, of what constitutes a clerical error, and this will be relevant for future rectification cases here.