Australian Capital Territory Current Acts Australian Capital Territory Current Acts(1) If the Supreme Court is satisfied that the probate copy of the will of a testator is so expressed that it fails to carry out his or her intentions, it may order that the will be rectified so as to carry out the testator's intentions.
(2) The Supreme Court may order that the probate copy of the last will of a testator be rectified to give effect to the testator's probable intention if satisfied that—
(a) any of the following apply in relation to circumstances or events (whether they existed or happened before, at or after the execution of the will):
(i) the circumstances or events were not known to, or anticipated by, the testator;
(ii) the effects of the circumstances or events were not fully appreciated by the testator;
(iii) the circumstances or events arose or happened at or after the death of the testator; and
(b) because of the circumstances or events, the application of the provisions of the will according to their tenor would fail to give effect to the probable intention of the testator if the testator had known of, anticipated or fully appreciated their effects.
(3) Except with the leave of the Supreme Court, an application to the court for an order for rectification shall not be made after the expiration of the period of 6 months commencing—
(a) if the public trustee and guardian is administering the estate of the testator under the Administration and Probate Act 1929
, section 87B or 87C — on the day when notice was given under that Act
, section 87B (4) or 87C (5);
(b) if an order has been granted under that Act
, section 88 (1) or (3) in respect of the estate of the testator—on the day when the order was granted; or
(c) in any other case—on the day of the grant of probate of the will or letters of administration of the relevant estate with will annexed.
(4) A personal representative of a deceased person may, within the period of 4 months commencing on the day referred to in subsection (3) (a), (b) or (c) (whichever is applicable), by public notice of his or her intention to distribute all or part of the estate of the deceased person after the expiration of the period of 1 month commencing on the day when the advertisement was so published and requiring any person wishing to make an application for an order for rectification to do so within that period of 1 month.
Note Public notice means notice on an ACT government website or in a daily newspaper circulating in the ACT (see Legislation Act
, dict, pt 1).
(5) A personal representative of a deceased person is not liable for having distributed any part of the estate of the deceased person otherwise than in accordance with the provisions of the will of that deceased person as altered by an order for rectification if the distribution was made prior to the making of that order in accordance with the provisions of the will before it was so altered and, at the time of the distribution—
(a) a period of 1 month had elapsed since an advertisement was published in accordance with subsection (4) and the personal representative had not received notice that an application had been made to the Supreme Court for an order for rectification; or
(b) the period of 6 months commencing on the day referred to in subsection (3) (a), (b) or (c) (whichever is applicable) had expired and—
(i) the personal representative had not received notice that an application had been made to the court for an order for rectification, that the court had granted leave to apply for such an order or that an application had been made to the court for leave to apply for such an order; or
(ii) the court had granted leave to apply for an order for rectification but a period of 7 days had elapsed since the day when that leave was granted without any application for such an order having been made.
(6) Nothing in this section shall be taken to affect the right of a person, arising by reason of the making of an order for rectification, to recover any part of the estate of a deceased person that had been distributed before that order was made.
(7) In this section:
"order for rectification" means an order inserting material in, or omitting material from, the probate copy of a will.
"personal representative", in relation to a deceased person, means the executor of the will of the deceased person or the administrator of the estate of the deceased person (including the public trustee and guardian when administering the estate of the deceased person under the Administration and Probate Act 1929
, section 87B, 87C or 88).
"probate copy", in relation to a will of a deceased person, includes the copy of the will—
(a) annexed to letters of administration of the estate of the deceased person; or
(b) used in administering the estate of the deceased person under the Administration and Probate Act 1929
, section 87B; or
(c) annexed to an election to administer the estate of the deceased person under that Act
, section 87C; or
(d) annexed to an order granted to collect and administer the estate of the deceased person under that Act
, section 88.