In the case of Re Schoenmakers [2013] VSC 556, the deceased’s brother made an out of time application for rectification of the deceased’s Will.

The deceased’s Will provided the brother (or the brother’s wife should the brother predecease him) with the net proceeds from the sale of the principal residential property owned by the deceased at the date of his death.

At the time of making his Will, the deceased’s principal residential property was a unit located in a retirement village. However, this unit was sold by the deceased’s financial power of attorney approximately a year after the deceased signed his Will and prior to his death. The deceased did not own a residential property at his death.

The Court determined that the evidence of the deceased’s instructions concerning any benefit to be given to the brother and the brother’s wife was clear. The deceased wanted the sale proceeds from his unit to pass to the brother or his wife. There were no instructions that the gift of the sale proceeds be tied to the unit being owned by the deceased at the date of his death. The drafting of the relevant clause in the Will restricts the gift to the brother to those circumstances and fails to set out the deceased’s instructions.

Accordingly, the Court decided that the brother was entitled to:

  • orders extending the time for making the application; and
  • rectification of the Will to the effect that notwithstanding the sale of the deceased’s principal place of residence, the defenant is entitled to receive that part of the estate of the deceased that represents the net proceeds of the sale of the unit.

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