A person’s will may not be accurate due to a mistake which causes the testamentary document to not effect their intentions, for example by incorrectly or ambiguously describing an asset which is intended to be gifted, or by wrongly specifying or naming an intended beneficiary.
If detected while the Testator is still alive and has capacity, the Testator may simply take the necessary steps to engage a solicitor and modify or change the error contained in the will. If the Testator is deceased the will may require legal interpretation or rectification by the Court.
What follows is an overview of the Court’s limited powers to rectify a will containing errors, attributed to either an error in execution, an error of fact, or due to some other misunderstanding made by either the will drafter or by the Testator him or herself.
Court’s Power of Rectification
In NSW, the power to rectify a will is contained in section 27 of the Succession Act 2006 (SA). If a will fails to carry out the will-maker’s intentions because of the way the will is expressed, or due to a clerical error, the Court has the discretionary power to rectify it. The fact that the Testator made a will shows they intended not to die intestate. The Court generally will seek to give effect to a Testator’s intentions rather than have intestacy.
Section 27 of the SA provides that a person wishing to make an application for an order under the section must apply to the Court within 12 months of the Testator’s death. However this period may be extended if final distribution has not been made or if the Court considers it necessary.
In order to be able to rectify a will the Court needs not only to be satisfied that the will was expressed so that it fails to carry out the Testator’s intentions, the Court must also be sure of exactly what it was that the will-maker intended: in Public Trustee v Permanent Trustee Co Ltd [2003] NSWSC 556 the court found: “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”.
Testator’s Intention and Clerical Error
Evidence of the deceased’s actual intention needs to be adduced, and just not be something that the Testator might have intended: Re Estate of Max Frederick Dippert [2001] NSWSC 167, (Young J, 20 March 2001 unreported). Ward J stated:
“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”.
In Re Will of McCowen [2013] NSWSC 1000, a clerical error was found to be made by a paralegal assistant. The Testator’s instructions, given to his Solicitor, were that the Testator’s last wife was to benefit, with $1000 to go to each of the 3 younger children and the residue to go to 3 elder children. The paralegal misread the solicitor’s notes and the will provided for the residue to be divided between the 6 children. The error to was rectified under section 27.
In Coates v Wattson; Estate of Sullivan [2013] NSWSC 604, the Testatrix’s instructions, as file noted by her solicitor, were “the balance of my estate to Brian Jack Coates and Janette Coates absolutely”, whereas the will was drafted incorrectly leaving the residue of the estate to the children. The Court found both clerical error and that the will did not give effect to the Testatrix’s instructions.
Property named no longer part of Estate
The case of Estate of Betty Tait; Vesco v Bannister [2010] NSWSC 1274 concerned the problem of ademption (i.e. when property bequeathed under a will is no longer in the Testator’s estate at the time of the Testator’s death). Betty Tait’s will, executed prior to her moving to a retirement unit contained the gift to her daughter, Sandra, of “my entire interest and estate in my home known as 11 Grevillea Street, Collaroy Plateau together with all the furniture and contents therein”. The daughter sought to have this rectified to read “my entire interest and estate in my home at the time of my death including any accommodation bond refund from a retirement unit”. The question of the Testator’s actual intention arose and the evidence provided included solicitor’s notes made several days prior to the signing of the will noting “If the house has been sold to fund a retirement unit, then the residue is to be divided”. Although the destination of the contemplated retirement unit was unclear from the notes, the intention was shown. In addition, the solicitor had recorded in his notes at the time the Collaroy Plateau home was sold that Mrs Tait’s will needed to be changed in respect to the property. A new will was prepared changing the reference to the house, however Mrs Tait died without executing the new will. The Court considered the evidence contained in the file notes and inferred that the replacement residence was to be treated in the same way as the Collaroy Plateau house.
In Dawson v Brazier & Ors [2012] NSWSC 117, clause 3(d) of the Testator’s will provided a legacy of $250,000 to the deceased’s sons, whereas clause 3(i) gifted the deceased’s funds at banks and other financial institutions to his daughters. His Honour Black J rectified clause 3(d) of the will, adding the words “to be paid out of the monies held by me in banks and other financial institutions”.
There have been numerous cases where a beneficiary organization was incorrectly named in the will. In Tantau v Macfarlane [2010] NSWSC 224 a gift was made to “Art Gallery of Victoria”. No such organization existed. Evidence was adduced that the deceased had been married to an artist whose painting was held in a Victorian Art Gallery. The Court ordered rectification of her will by substituting the word “Art” with the word “National” so as to give effect to her intention.
Testator Signed the Wrong Document
Finally there are cases where the Testator has unknowingly signed the wrong document, incorrectly believing what they had executed was actually their will. There have been numerous instances where husband and wife had each executed each other’s mirror will.
In the Estate of Daly [2012] NSWSC 555 it was found that the correct course of rectifying the error was not by utilizing section 27, but via section 8 of the Succession Act: “When may the Court dispense with the requirements for execution, alteration or revocation of wills?” As His Honour White J said at 25. “Section 27 would not confer power to make the orders sought in the amended summons. Before there can be an order for rectification there must first be a will. If no order were made under s 8, the document expressed to be the last will of the deceased [wife], but not signed by her, could not be rectified by omitting the signature of Henri Georges Daly [her husband] and deeming the document to have been signed by the deceased because the document in question would never have been the valid will of the deceased (Succession Act, s 6). If an order is made under s 8, no rectification is necessary.”
To avoid such issues, your will should be drafted correctly. In the event of the death of a Testator, it is important that the executor and beneficiaries obtain appropriate legal advice should the Testator’s will require rectification.
Commercial Lawyers Sydney at Pavuk Legal can assist you with a full range of legal services including drafting your will. Further, in instances where there is a defective will and the Testator has died, Pavuk Legal can provide advice and seek judicial interpretation to rectify changes. Pavuk Legal can also provide you with sound advice in relation to Wills and Estate Planning, Disputing and Defending Wills, Family Provision claims, Succession issues; Property disputes and Application for the removal of the executor of an estate.
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