What is the effect of an error in a will?
Where a will contains a clerical error, or does not reflect the will-maker’s instructions, the will can be rectified (corrected) so as to carry out the deceased’s actual intentions.
How to correct an error in a will
Correcting an error in a will requires an application to the High Court under section 31 of the Wills Act 2007. In order for the will to be rectified by the Court, the person making the application must prove that:
- the will fails to carry out the will-maker’s intentions; and
- this is due to either:
- a clerical error; or
- a failure of the drafter to implement the deceased’s instructions.
- a clerical error; or
Examples of errors in wills that have been corrected
Examples of errors that have been corrected include:
- a will that incorrectly named a beneficiary as “Dennis Pearl Reynolds” rather than “Doris Pearl Reynolds”;
- a will that referred to “wife” when “son” was clearly intended (as the will-maker’s wife had already passed away at the time the will was drafted);
- a will that referred to the wrong address of a property;
- a codicil that mistakenly referred to the incorrect will; and
- an imprecisely drafted clause appointing “two of the partners” of a law firm as executors without specifying which of the partners this was to apply to.
Error due to changed circumstances after creation of will
The Court cannot correct a will where the error arises because of a change in circumstances after the will has been made, for instance where a particular item of property named in the will has subsequently been sold and replaced. Read more about what happens if property left under a will has already been sold or given away here.
Alternative to court application
Where all parties agree that there has been a mistake, and that the error in the will should be corrected, an option that is easier and cheaper than going to court can be for the parties to enter into a deed of family arrangement. Read more about deeds of family arrangement here.