The Estate of Wade [2026] – Construction of a Home-made Will & Rectification – Succession – Mr Anthony Strik
In The Estate of Wade [2026] NSWSC 1225, Meek J of the Equity Division of the NSW Supreme Court decided, as separate questions, whether a gift of residue in a home-made will had failed and, if so, whether the will should be rectified. The separate questions were heard on 24 September 2026. Orders were made on 2 October 2026 and reasons were published on 6 October 2026.
Background
The late Victor Wade died in November 2023, aged 96. His wife of more than 70 years, Ivy, had died 22 months earlier. They had four children: Richard, Gary, Paul and Dianne. Dianne had cared for her mother for most of her adult life.
The deceased’s 2014 will left everything to Ivy, with a gift over to Dianne. In mid-2018 he asked his nephew, Edward, a retired high school teacher, to prepare a new will. Edward used a will template he found online. The will, dated July 2018, left $5,000 to each son, saying they had been well provided for during their lives. It left Dianne $200,000 for the settlement of her loans, said to be “an equatable outcome” for the four children. The residue went to Dianne if she survived the deceased by 30 days, and otherwise to Edward. Beneath Edward’s name, in bold capitals, appeared the words “FOR THE PURPOSE OF – Providing the most appropriate care for my loving wife” (‘the Care purpose’).
The residue included a house and land at Murwillumbah. Together these made up most of an estate valued for probate at about $3.8 million.
Richard and Paul argued that the Care purpose qualified the whole residuary gift and gave Dianne no beneficial interest. On that view the residue failed when Ivy died first, and passed on intestacy to all four children. Dianne argued that she took the residue absolutely. In the alternative, she sought rectification under s 27 of the Succession Act 2006 (NSW) (‘the Act’).
Legal Issues
The parties accepted that the residuary clause was ambiguous. Three constructions were available. Dianne took the residue:
- beneficially, unaffected by the Care purpose;
- beneficially, but subject to the Care purpose in favour of Ivy; or
- solely for Ivy’s care, with no beneficial interest. Only this construction produced an intestacy.
Legal Reasoning
Edward’s Evidence
Edward was the only witness to the will-making process, and he was cross-examined at length. Computer records showed that typed letters he said he had shown the deceased before execution were in fact created in July 2021, three years later. Edward withdrew parts of his evidence. Meek J did not find that he was lying, and accepted some parts of his evidence, including that Dianne had long cared for Ivy. However, his Honour had grave doubts about the reliability of his detailed accounts of the deceased’s instructions.
Formatting and Punctuation
Richard argued that the bold capitals in “FOR THE PURPOSE OF” made the Care purpose a mandatory provision of the same weight as the will’s other headings, and that it governed the whole residuary gift. Meek J held that formatting can only be relied on if it was used consciously and not haphazardly. Edward gave evidence that the bolding, capitals and dashes came from the template. His Honour also explained the different functions of the hyphen, en dash and em dash, and noted that the will used a hyphen as an em dash. Even so, because the deceased had signed the will in that form, his Honour accepted that the Care purpose was more than a mere wish.
Did the Care Purpose Qualify the Whole Residue?
Meek J held that it did not, for two reasons:
- The bold capitals were applied inconsistently throughout the will. Some marked new topics and others marked provisos within a topic, so they could not show that the Care purpose governed the whole of the residuary gift.
- More significantly, every gift in the will was followed by its reason or purpose, except the residuary gift to Dianne. The Care purpose sat directly beneath Edward’s name. It was separated from the gift to Dianne by the survival proviso, which only operated if Dianne did not survive the deceased.
His Honour rejected the argument that leaving Ivy unprovided for was inconceivable. The deceased knew Dianne was caring for Ivy and expected her to continue: “He trusted Dianne”. The Care purpose was attached to the gift over because Edward, unlike Dianne, had not been caring for Ivy.
Did Dianne Take Beneficially in Any Event?
In case he was wrong on that point, Meek J applied Dixon J’s four categories of gifts made for a stated purpose in Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417. Dianne’s position was akin to that of a guardian and carer for her mother. The fund was large and Ivy was elderly, so the fund was unlikely to be exhausted by her care. Read in that context, any surplus was intended to remain with Dianne, not to be left undisposed of.
The “equalisation” argument also failed. The cash legacies addressed what each child had received during the deceased’s lifetime. Once that adjustment was made, he was free to leave the residue as he wished. His Honour also leaned against a construction producing intestacy. The deceased’s statement to Edward in 2022, nearly four years after the will, could not be used in construing it.
Rectification
Strictly, rectification did not need to be decided. Meek J indicated he would not have granted it, because Edward’s account of the deceased’s instructions was not reliable enough to meet the requirement of clear and convincing proof. His Honour would, however, have extended time to bring the application under s 27(3) of the Act.
Outcome
Meek J declared that on the true construction of the will, Dianne is entitled to the residue absolutely in her personal capacity, and there is no intestacy. The construction claims of Richard and Paul and the rectification claim were dismissed.
Dianne’s costs are to be paid from the estate on the indemnity basis. Richard’s costs, and Paul’s costs of the separate question in his proceedings, are to be paid from the estate on the ordinary basis.
Analysis
The case is a useful guide to construing home-made wills. Courts will rely on the layout and structure of a will, but formatting copied from a template carries little weight unless it was used deliberately. The decision also shows the risk of relying on the will-drafter as the only witness. Once Edward’s evidence about the letters was disproved, the rectification claim failed, and the case turned on the text of the will alone.
Practitioners should also note his Honour’s comment on valuation evidence. In a construction dispute, valuations as at the date of the will are more helpful than probate values taken years later.
Anthony Strik accepts briefs in estate and succession disputes. If you require experienced legal representation in the Supreme Court of NSW, please contact his chambers.
This is commentary, not advice about your case.