Rectify a mistake discovered in the will after death

A will may need to be rectified to fix a mistake so that the estate can be distributed.  Sometimes it is not until after a will-maker dies, when their executor is applying for a grant of probate, or seeking to administer the estate, that some kind of administrative mistake is discovered in the will. 

Rectifying administrative errors

For example words used in the will, or some mis-description, operate to prevent the will-maker’s intentions from being put into effect.  Resolving the problem usually requires making an application to the Court.  This causes expense and delay.

It is unfortunate that such genuine clerical mistakes or ambiguities are not picked up during will-making. Can anything be done when they are discovered after death?  Can they be fixed so as to preserve what the deceased intended to happen?  Or will it result in an intestacy?

Probate Court may rectify a will in some circumstances

Fortunately legislation in all states and territories gives the Probate Court a discretionary power to rectify a last will so that it will carry out the intentions of a will-maker because an error was made or because the will fails to give effect to the testator’s instructions.  So for example in NSW, the power to rectify a will is given by section 27 of the Succession Act 2006, which states in part:

(1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator’s intentions because:

(a) a clerical error was made, or
(b) the will does not give effect to the testator’s instructions.
…..

The law on rectifying a will varies slightly between the states and territories

There is some variation between the states and territories, follow the links below.

NSW:  Court may rectify a will, section 27 of the Succession Act 2006 (NSW)
SA:  Power of rectification – section 25AA of the Wills act 1936 (SA)
Victoria:  Can a will be rectified? – section 37 of the Wills Act 1937 (VIC)
Queensland:  Court may rectify a will – section 33 of the Succession Act 1981 (QLD)
Tasmania:  Court may rectify a will – section 42 of the Wills Act 2008 (TAS)
Western Australia:  Court may rectify will – section 50 of the Wills Act (WA)
Northern Territory: Court may rectify will – section 27 of the Wills Act (NT)
ACT:  Rectification – section 12A of the Wills Act 1968 (ACT).  

Time limits apply on making an application to rectify a will

The law provides a limited time to make an application to the Court to rectify a will.  The period can vary from 3 to 12 months depending on the state or territory.  The time can start from either the date of death or from the date probate was granted by the Probate Court.  

In some circumstances, if the Court thinks it necessary or appropriate, the Court may grant an extension of time.  However this can’t be done, usually, if the final distribution of the estate has been made.

Examples of situations

Some examples where a will has been rectified are:

Describing children

Words used in the will have a different meaning to what was intended.  For example a will-maker left a gift to “my children” when in fact he had no children of his own. Rather, he had step-children.  The evidence showed that he regarded his step-children as if they were his own blood children.

Inadequate descriptions of property

Property incorrectly described in the will.  For example where a will-maker wanted to leave ‘my house’ to their adult child.  However the address of the child’s house was mistakenly written in the will instead.

Incorrect name for an organisation gift-recipient

Mis-description of an organisation’s name.  For example an arts organisation.  The will-maker left part of her estate to an organisation named in her will as the “Art Gallery of Victoria”.  No entity of that name existed.  But there was the National Gallery of Victoria (NGV).   Evidence showed that the will-maker had an artist relative (by marriage) whose painting was held by a Victorian art gallery, among other things.  She wanted to leave the Victorian gallery a gift, but not the national gallery in Canberra.  The Court said her will failed to carry out her intentions due to her error in identifying the gallery’s correct name.  Hence the Court ordered rectification of her will by substituting the word “Art” with the word “National” so as to give effect to her intention to leave a gift to the Victorian art gallery which held the relative’s painting.¹

Mirror wills – signing the wrong one 

Spouse and partners often make wills which are in the same terms (mirror wills).  Unfortunately there have been instances where each has mistakenly signed the will of the other.  The mistake not picked up until one of them died.  While courts have said that the power to rectify a will may be used to fix up this type of mistake, in recent cases the Courts have used a different approach.

The Court must be satisfied before it will rectify a will

Basically the legislation requires that the Court may only make an order to rectify a will if it is satisfied that the will, or some of it, does not carry out the testator’s intentions.  As one judge said, quoting another:

Before the power of rectification can be exercised, the court must be satisfied both that the will was so expressed that it fails to carry out the testator’s intentions, and also what it was that the testator intended concerning the part of the will which is to be rectified.²

Evidentiary requirements

If you are considering making an application to the court for the rectification of a will, you will need to provide relevant evidence of the deceased’s intention.  This evidence has to be of a high standard and clear and convincing. 

The evidence needs to be able to show proof to the Court without doubt what the will-maker’s instructions, intentions or wishes were. An opinion is not enough. Courts have stated that the evidence must show clear proof of a testator’s actual intention, not something that the testator might have intended.³

As one New South Wales judge said:

What one must look for is an error which has occurred in the transcription of the will or where one can see what the intention of the testator was but the words used have not fulfilled the intention. What one cannot do is to look at unforeseen circumstances and speculate what the testator might have done in those circumstances and then supply words to meet those circumstances.”³ 

Must be an unintended error before the Court will rectify

The Court has to be satisfied that not only was there an error or misdescription, but it has to be sure what the will-maker intended.

If someone has gone to the time, effort and trouble, often seeking legal advice to set down what they want to have happen to their property after they die, it is clear they did not wish to die intestate. 

Recognising the will-making process Courts say they will seek to give legal effect to the will-maker’s intentions and instructions rather than have an intestacy.  This is where a solution can reasonably be found in the circumstances. 

It is a complicated technical area and specialised legal advice should be sought. Solicitors specialising in wills and estates can be found from the various law societies’ find a lawyer or lawyer referral services located on their websites.

1.Tantau v Macfarlane [2010] NSWSC 224
2. Public Trustee v Permanent Trustee Co Ltd [2003] NSWSC 556- this was the rectification case
3. Re Estate of Max Frederick Dippert [2001] NSWSC 167, (Young J, 20 March 2001 unreported)

B Stead
BHS Legal