HAYES v HAYES [2026] WASC 361

[2026] WASC 361 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : HAYES v HAYES [2026] WASC 361 CORAM : MASTER RUSSELL HEARD : 27 AUGUST 2026 DELIVERED : 27 AUGUST 2026 FILE NO/S : CIV 2060 of 2026 BETWEEN : JULIE KAYE HAYES as Executor of the Estate of ROBYN LEE WOOD Plaintiff AND JULIE KAYE HAYES as Beneficiary of the Estate of ROBYN LEE WOOD Defendant Catchwords: Wills and estates - Application to rectify will under s 50(1) of the Wills Act 1970 (WA) - Exercise of discretion to rectify will which does not carry out testator's intentions because of a clerical error - Orders made for rectification of will - Turns on own facts Legislation: Wills Act 1970 (WA) s 50, s 50(1), s 50(2) -- 1 of 7 -- [2026] WASC 361 Page 2 Result: Application granted Orders made for rectification of will Category: B Representation: Counsel: Plaintiff : A van der Vyver Defendant : No appearance Solicitors: Plaintiff : Fort Knox Legal Defendant : No appearance Case(s) referred to in decision(s): ANZ Trustees Ltd v Hamlet [2010] VSC 207 Australian Executor Trustees Ltd v Fermoyle [2024] WASC 209 Estate of Grahame David Wright [2016] NSWSC 1779 Jupp v Jupp & Ors [2025] WASC 315 Palethorpe v The Public Trustee of Queensland & Ors [2011] QSC 335 Shirdon v Cox [2019] WASC 433 Stephen Bradley Lauder as executor of the will of Elaine Kathleen Rankin v Lauder [2018] WASC 91 Vescio v Bannister [2010] NSWSC 1274; (2010) 3 ASTLR 619 -- 2 of 7 -- [2026] WASC 361 MASTER RUSSELL Page 3 MASTER RUSSELL: (These reasons were delivered orally on 27 August 2026 and have been edited from the court's record to include references and headings and correct matters of grammar and expression). Introduction 1 The plaintiff, Julie Kaye Hayes, is named as executor of the will of her late sister, Robyn Lee Wood, who died on 30 May 2026, leaving a will dated 12 May 2025 (Will). 2 With no disrespect to the deceased or to the plaintiff, I will refer to them by their first names. 3 By originating summons filed on 7 August 2026, Julie seeks an order pursuant to s 50(1) of the Wills Act 1970 (WA) (Act) to rectify the Will to correct clerical errors to give effect to Robyn's instructions and so that the Will carries out her intentions. 4 In support of the application, Julie relies on her affidavit sworn on 28 July 2026 and an affidavit affirmed on 13 July 2026 by Sarah Jane Hay, the solicitor who took instructions from Robyn and prepared the Will. Relevant facts 5 Ms Hay is a solicitor who has been admitted since September 2018. At the time of preparing the Will, Ms Hay was employed as a solicitor by Ellery Brookman Barristers & Solicitors. She met with Robyn and Julie in Esperance on 16 April 2025 and took instructions from each of them in relation to their respective wills and other estate planning documents. She subsequently drafted wills and other estate planning documents for each of Robyn and Julie and sent drafts to them by email on 1 May 2025. 6 Hard copies of the wills were sent to Robyn and Julie by post and received by them on 6 May 2025. Ms Hay was not present at the time that Robyn executed the Will. It was executed by Robyn on 12 May 2025 in the presence of the witnesses, as stated in the Will, and was then stored by Julie until after Robyn had passed away. 7 A copy of the Will, as executed, is attached to Julie's affidavit. It is in the same terms as the draft of the Will prepared by Ms Hay, a copy of which is attached to Ms Hay's affidavit. Julie did not consider the -- 3 of 7 -- [2026] WASC 361 MASTER RUSSELL Page 4 terms of Robyn's Will before or after Robyn signed it. Following Robyn's death, Julie noted the errors now sought to be rectified. 8 Orders are sought to correct clerical errors in clause 6 of the Will, which names Robyn as the residuary beneficiary of Robyn's own estate instead of Julie. 9 Clause 6 of the Will as drafted and signed by Robyn provides: 6. Distribution of Remaining Balance of Estate 6.1 If my sister Robyn survives me by thirty (30) days, the remaining balance of my Estate shall be held on trust for Robyn absolutely. 6.2 If my sister Robyn does not survive me by thirty (30) days then the next clauses apply instead of this clause. 10 Ms Hay verifies in her affidavit that the instructions provided to her by Robyn were to the effect that she wanted her sister, Julie, to receive her entire estate. Having reviewed her file notes and clause 6 of the Will, Ms Hay states that the reference to Robyn as the beneficiary in clause 6 of the Will is not consistent with the instructions given to her by Robyn and is solely the result of a drafting error. 11 Robyn's estate is relatively modest, with an estimated value of $200,000 comprising a 50% interest as tenant in common with Julie in a unit in Esperance and funds in bank accounts. Section 50 of the Wills Act 1970 (WA) 12 Section 50 of the Act provides, relevantly: 50. Court may rectify will (1) The Court may make an order rectifying a will to carry out the intentions of a deceased testator if the Court is satisfied that the will does not carry out the testator's intentions because — (a) a clerical error was made; or (b) the will does not give effect to the testator's instructions. (2) Any application for an order under this section must be made within 6 months after the death of the testator. -- 4 of 7 -- [2026] WASC 361 MASTER RUSSELL Page 5 (3) The Court may extend the period of time for making an application, even if the original period has expired, but not if the final distribution of the estate has been made. (4) A certified copy of an order under this section must be attached to the original will and to the probated copy of the will. … 13 The application to rectify the Will has been made within six months of Robyn's death, as required by s 50(2) of the Act. As such, there is no requirement to extend time. Applicable principles 14 I considered the principles that apply to an application to rectify a will pursuant to s 50(1) of the Act in Jupp v Jupp & Ors,1 which I refer to without repeating in full. 15 The matters the court must be satisfied of before making an order to rectify a will may be summarised as follows:2 (a) the testator's testamentary intentions at the time the will was made;3 (b) that the will, as drafted, on a proper construction, does not give effect to the testator's testamentary intentions;4 (c) 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 (d) the proposed rectification is in a form that gives effect to the testator's intentions.5 1 Jupp v Jupp & Ors [2025] WASC 315 (Jupp v Jupp) [19] - [24]. 2 See Jupp v Jupp [22], referring to Australian Executor Trustees Ltd v Fermoyle [2024] WASC 209 [19] (Cobby J). 3 Vescio v Bannister [2010] NSWSC 1274; (2010) 3 ASTLR 619 (Vescio v Bannister) [12] - [15] (Barrett J). See also Palethorpe v The Public Trustee of Queensland & Ors [2011] QSC 335 (Palethorpe) [18] (Philippides J); Estate of Grahame David Wright [2016] NSWSC 1779 [37] (Kunc J); Stephen Bradley Lauder as executor of the will of Elaine Kathleen Rankin v Lauder [2018] WASC 91 (Lauder v Lauder) [22] - [25] (Pritchard J); Shirdon v Cox [2019] WASC 433 [9] (Curthoys J). 4 ANZ Trustees Ltd v Hamlet [2010] VSC 207 (ANZ Trustees) [3] (Pagone J); Vescio v Bannister [14]. See also Palethorpe [15], [18]. 5 Vescio v Bannister [14]. -- 5 of 7 -- [2026] WASC 361 MASTER RUSSELL Page 6 16 In determining a testator's actual intention, the evidence of a legal practitioner who received the testator's instructions will necessarily carry significant weight in determining what a testator's instructions were, and will often, if not always, be determinative of a testator's intentions.6 Determination 17 I am satisfied on the evidence before the court that Robyn's instructions to Ms Hay, who prepared the Will, were that Robyn's sister, Julie, was to receive the residue of Robyn's estate if Julie survived Robyn by 30 days, and that the references to 'Robyn' in clause 6.1 and clause 6.2 of the Will were included as a result of a clerical error. 18 The Will as drafted and executed does not carry out Robyn's intentions because of the clerical error made and does not give effect to Robyn's instructions. The Will should be rectified pursuant to s 50(1) of the Act by varying clause 6.1 and clause 6.2 by replacing each of the references to 'Robyn' with 'Julie'. Conclusions and orders 19 For these reasons, I am satisfied it is appropriate to make orders to the effect sought and make the following orders: 1. Pursuant to s 50(1) of the Wills Act 1970 (WA), the Will of the late Robyn Lee Wood (Deceased) dated 12 May 2025 (Will) be rectified to carry out the testamentary intentions of the Deceased by: (a) varying clause 6.1 of the Will by deleting the references to 'Robyn' and replacing them with 'Julie' so that clause 6.1 of the Will now reads: 'If my sister Julie survives me by thirty (30) days, the remaining balance of my Estate shall be held on trust for Julie absolutely'. (b) varying clause 6.2 of the Will by deleting the reference to 'Robyn' and replacing it with 'Julie' so that clause 6.2 of the Will now reads: 'If my sister Julie does not survive me by thirty (30) days then the next clauses apply instead of this clause'. 6 Lauder v Lauder [26], citing ANZ Trustees [14]; see also Vescio v Bannister [15]. -- 6 of 7 -- [2026] WASC 361 MASTER RUSSELL Page 7 2. A certified copy of these orders shall be filed together with the original Will in support of the plaintiff's application for a grant of probate in respect of the Will and be attached to the probated copy of the Will upon a grant of probate being made by the Registrar. 20 The plaintiff also seeks an order that her costs of the application be paid out of Robyn's estate on a solicitor and client basis. I am satisfied that it is appropriate to make an order to that effect and I make that order. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SC Associate to Master Russell 27 AUGUST 2026 -- 7 of 7 --