Although the expression “literary executor” is commonly understood to describe a person responsible for an author’s literary property after death, it has no particular statutory definition under the ACT legislation governing wills and probate. The concept is nevertheless well recognised at general law.
A testator may appoint one executor generally while appointing another executor whose authority is limited to particular property. Literary works are a classic example because copyright, manuscripts, royalties, publishing arrangements and dealings with literary agents may require specialist management over a lengthy period.
Rein J considered the principle in The Estate of Nicholas Paul Enright [2017] NSWSC 1646, which concerned the estate of the Australian playwright Nicholas Enright and the legal significance of his appointment of a literary executor.
Importantly, describing somebody as a literary executor can have consequences that extend considerably beyond asking that person to deal informally with publishers, researchers, or enquiries about the deceased’s work.
A person can be appointed executor of a particular class of property, with the administration of that property correspondingly separated from the administration of the balance of the estate.
That distinction became critical In the estate of Mary Patricia Clarke [2026] ACTSC 288.
The ACT Supreme Court has rectified the Will of the late Mary Patricia Clarke, removing a clause appointing one of her daughters as her “literary executor and literary trustee” after concluding that the clause produced legal and administrative consequences the deceased had probably never intended.
In reasons delivered by Muller J, In the Estate of Mary Patricia Clarke illustrates the breadth of the ACT’s statutory rectification jurisdiction and, more particularly, the potential consequences of appointing a specialist executor to administer only one class of estate property.
Rectification under s 12A of the Wills Act 1968 (ACT)
Section 12A provides two avenues for rectification.
s 12A(1) provides that the Supreme Court may rectify a Will where its expression fails to carry out the testator’s intentions.
s 12A(2) provides a broader jurisdiction and permits rectification to give effect to the testator’s probable intention where relevant circumstances or events were:
- not known or anticipated,
- were not fully appreciated, or
- arose at or after death, and
- applying the Will according to its terms would consequently fail to give effect to that probable intention.
It was the broader pathway that mattered In the estate of Mary Patricia Clarke [2026] ACTSC 288.
The Will and the literary estate
The deceased was a journalist, writer, and historian who died on 9 March 2026 and left a Will dated 22 November 2017. The deceased’s husband, Hugh Vincent Clarke, also a writer, predeceased her. The deceased is survived by three children, Brigid, Justin and John, all of whom were appointed executors and trustees.
Clause 3 of the Will separately appointed Brigid as the deceased’s literary executor and literary trustee. The clause gave Brigid responsibility for managing the intellectual property and copyright in the deceased’s published and unpublished works, together with those of Hugh, and directed that the literary estate and its net profits be distributed to Brigid.
The difficulty arose during the probate process, when the Registry raised a requisition concerning the appointment’s meaning and effect. Subsequently, the three children sought rectification of the Will by deleting cl 3.
What had the deceased intended?
Brigid’s evidence was that the literary estate principally comprised royalties generated by her parents’ published and unpublished works.
Royalties amounted to only $1,808 in the 2024–25 financial year, and were expected to decline.
Brigid, herself a journalist, understood from conversations with the deceased that she was to take responsibility for managing enquiries and ongoing contacts concerning the deceased’s research and literary work. The deceased did not intend that, in the probate sense, Brigid become a separate executor responsible for administering a discrete part of the estate. The broader intention was that the deceased’s three children administer the estate together.
Additionally, as cl 3 directed the literary estate and its profits to Brigid, the estate’s actual operation also gave Brigid a financial benefit that the deceased’s other children, Justin and John, did not receive. Brigid submitted that the literary estate was sufficiently modest that there would be no material disadvantage if it instead formed part of the residuary estate shared equally between the siblings.
Submissions were not that the drafting failed to record something the deceased had expressly intended. Rather, the deceased had probably not appreciated the legal effect of appointing a literary executor, including the additional administrative burden of treating the literary estate separately. That distinction demonstrates the unusual breadth of the ACT provision.
As McWilliam AsJ observed in In the Estate of Rummer [2017] ACTSC 277; 12 ACTLR 258, s 12A(2) goes beyond the traditional common law approach by allowing the Court, in appropriate circumstances, to determine what the testator probably intended had the relevant circumstances or their legal effects been fully appreciated.
The Court’s reasoning
Muller J approached the matter through four questions:
- What did the Will mean?
- What was Mary’s testamentary intention?
- Did the Will correctly reflect that intention?
- If not, could it be rectified?
His Honour considered there was genuine uncertainty about the legal effect intended by cl 3.
Although cl 2 appointed all three children as executors and trustees generally, cl 3 was capable of separately appointing Brigid as the sole executor and trustee responsible for the intellectual property and copyright comprising the literary estate. That construction carried practical consequences:
- separate administration and management of that part of the estate,
- separate accounting for its proceeds and
- a modest additional financial benefit for Brigid.
Muller J was satisfied that this was not what the deceased intended. Rather, the deceased intended that Brigid should assume administrative responsibility for handling enquiries concerning her parents’ literary works, given Brigid’s relevant background and experience. The deceased had not intended to impose the additional burden associated with separately administering part of the estate, nor had she intended to confer an additional financial advantage on Brigid over her siblings.
The modest value of the royalties relative to the administrative burden reinforced that conclusion.
The Will therefore failed to accord with the deceased’s probable testamentary intention.
Rectification ordered
On 7 August 2026, the Court ordered under s 12A of the Wills Act 1968 (ACT) the removal of cl 3 from the deceased’s Will. Importantly, Muller J distinguished between the legal consequences of appointing Brigid as a separate executor and the deceased’s underlying wish that Brigid take practical responsibility for enquiries concerning the family’s literary works. Deleting the clause removed the unintended probate consequences without preventing Brigid from continuing to perform that practical role.
Why the decision matters
In the estate of Mary Patricia Clarke [2026] ACTSC 288 is a useful reminder that apparently descriptive language in a Will can carry substantive probate consequences. An appointment as a “literary executor” is not necessarily just an expression of who should look after manuscripts, copyright, publishing enquiries or an author’s legacy.
Depending upon the language of the Will, it may amount to the appointment of a separate executor whose authority is limited to a particular class of estate property. For practitioners drafting wills containing specialist appointments—whether concerning literary works, businesses, digital assets or property in another jurisdiction—the intended legal status of the appointee should therefore be made explicit.
If the intention is merely that one beneficiary or executor should take the lead in managing a particular asset, the Will should distinguish that administrative responsibility from the formal appointment of a separate executor. The decision also illustrates the comparatively broad operation of s 12A(2) of the Wills Act 1968 (ACT).
Rectification is not confined to correcting drafting mistakes. In an appropriate case, it can address a situation in which the words used have legal and practical consequences that the testator probably did not understand or appreciate. The result ultimately turned on a simple distinction with significant consequences: the deceased wanted Brigid to manage her literary legacy, not to create a separate probate administration for it.
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