This application sought the court's opinion and direction on the interpretation and potential rectification of Shirley Cunningham's General and Limited Property Wills.
The core issue was whether Kimberly Cunningham, a grandchild born outside of marriage, should be considered a "child" of Tenny Clark-Drost for the purposes of a trust established in the wills, given an "Exclusion Clause" that defined "children" as not including those born outside marriage.
The applicant, Carrie-Lee Hofman, argued Kimberly was excluded.
The respondent, Kimberly Cunningham, sought rectification, arguing the clause was a drafting error contrary to the testatrix's true intent.
The court found that the drafting solicitor's inclusion of the Exclusion Clause and the use of a beneficiary class instead of specific names constituted a drafting mistake, as it did not align with Shirley's clear instructions to benefit both Carrie-Lee and Kimberly equally.
Rectification was ordered, deleting the problematic clauses from both wills, thereby including Kimberly as a beneficiary.
