Typos and Spelling Errors in Wills

When a person makes their will, they typically make every effort to ensure that it is absolutely accurate and correct. Despite this, it is not unusual to find a typo or spelling error in a will, particularly in wills that have been self-drafted. A minor mistake in a will often makes no difference to its validity, but some errors can have serious consequences. A will that contains typos or spelling errors can prevent the easy identification of a beneficiary or asset, or create ambiguity about the testator’s intent. This article explains how a testator can fix these mistakes and the options for dealing with typos and spelling errors in wills. 

Correcting Typos And Spelling Errors In Wills

When a testator discovers an error in their will, there are several ways they can fix this. Small errors can be corrected by crossing out the incorrect word and writing in the correct word, but only if the changes are properly executed and signed in front of two witnesses. An alteration that is not signed and witnessed will not be legally valid. Another option is to create a codicil to the will, which deletes the clause with the typo or spelling error and replaces it with the correct words. Codicils must be executed according to the same statutory requirements as wills. They must refer to the original will and be stored in the same location as the will.

However, the safest approach to correcting errors in a will is to create a brand new will according to statutory regulations. This allows the testator to correct typos and spelling errors as well as to make updates to the list of bequests and beneficiaries.

Finding Errors In a will After the Testator Passes Away

Sometimes typos and spelling errors in wills are not noticed until after the testator dies. An executor may not discover the issue until they make an application for a Grant of Probate or start administering the estate. When there is a misdescription in a will, this can prevent the executor from fulfilling the testator’s intention. The executor may need to apply to the court to resolve the ambiguity, which may cause undue delay and additional expense.

Rectifying An Error In A Will

Probate courts have the discretion to rectify typos and spelling errors in wills in order to fulfil a testator’s clear instructions. For example, in New South Wales, the Succession Act 2006 states that the Supreme Court can rectify a will that contains a clerical error or a clause that does not give effect to the testator’s instructions. There are time limits that apply to rectifying a will in this way, varying from three months to a year. For instance, in New South Wales, the deadline is 12 months from the testator’s death. The court may grant an extension to this deadline under some circumstances, but not if the estate has already been fully distributed.

Rectification

An error in a will usually does not invalidate the will. The key issue is whether the court can work out the testator’s true intention. For instance, the court can fix a will that misidentifies property if it is clear what the testator meant to describe. However, if there is a misidentified property and it is unclear which property the testator was referring to, this can be a much more serious issue.

Issues can also arise when the wording used in a will is imprecise. A testator might, for instance, leave their estate to “my children”, when they have no biological children but does have stepchildren that they have always regarded as their own. In that case, the court can use extrinsic evidence to establish the true intention of the testator. However, if a testator leaves their estate to “my children” and has both biological and stepchildren, it will be more difficult to establish their intentions towards their stepchildren. For this reason, solicitors define all significant terms in a will.

Testators often misspell or incorrectly identify charities in their will. The name of an organisation must be correct in order for a charitable bequest to be valid. Otherwise, the gift may fail or at least become subject to expensive litigation. 

For example, in the 2010 decision of Tantau v McFarlane, the executor of an estate was forced to apply to the Victorian Supreme Court to rectify a bequest to the “Art Gallery of Victoria”, which was intended to read the “National Gallery of Victoria”. A testator who is seeking to make a charitable bequest should transcribe the charity’s details from its own marketing material. Larger charities usually have a donation section on their website that gives their legal details and also provides suggested wording for a bequest.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts, a Master of Arts and a Graduate Diploma in Legal Practice. She practised law for eight years, working in criminal defence, child protection, domestic violence and family law in the Northern Territory and Queensland.
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