Typos And Spelling Errors In Wills
People typically make every effort to ensure that their last will and testament is absolutely accurate and correct. Despite this, it is not unusual for there to be a typo or spelling error in a will, particularly in self-drafted documents. A minor mistake will often make no difference to the validity of the will, but some errors can have serious consequences. A will that contains a typo or spelling error can prevent the easy identification of a beneficiary or asset, or otherwise create ambiguity over the testator’s intent. This article explains how a testator can rectify these mistakes in a document and the options to deal with typos and spelling errors in wills.
Correcting Typos and Spelling Errors In Wills
When a testator finds an error in their own will, there are several options they can pursue to fix the issue. Smaller errors can be corrected by crossing out and writing in new words, but only if the changes are properly executed and signed in the presence of two witnesses. Otherwise, an alteration will not be legally valid. Another option is to make a codicil to the will, which deletes the clause containing the typo or spelling error and replaces it with a correct version. Codicils must be executed according to the same statutory requirements as a will and must refer to the original will and be stored in the same location.
However, the safest approach to correcting even a small error in a document is to create a brand new will according to statutory regulations. This allows the testator to correct any typo and spelling error in a will, and also make any updates to the list of bequests and beneficiaries.
Finding Errors After Testator Passes Away
Sometimes typos and spelling errors in wills are not uncovered until after a testator dies. An executor may not discover the mistake until they apply for probate or start the administration of the estate. When there is a misdescription of a beneficiary or asset in a will, it can prevent the executor from fulfilling the testator’s intention. The executor may ultimately need to make an application to the court to resolve the ambiguity, causing undue delay and additional expense.
Rectifying A Typo Or Spelling Error In A Will
The probate court in each state and territory has discretionary power 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 of NSW can rectify a will that has a clerical error or that does not currently give effect to the testator’s instructions. There are time limits that apply to rectifying a will in this manner, varying from three months to a year. For instance, in NSW, the deadline is 12 months from the testator’s date of death. The court may, under certain circumstances, grant an extension to this deadline, but not if the deceased estate has been fully distributed.
A typo or spelling error usually does not invalidate a will. The key issue is whether the court can discern the true intention of the testator. For instance, the court can fix a misidentified property if it is clear to everyone what the testator meant to describe. However, if there is a misidentified property and it is not clear which property the testator meant, this can be a much more serious issue to resolve.
Issues can also arise when the language used in a will is not precise. A testator might, for instance, leave his estate to “my children”, when he has no biological children but does have stepchildren that he has always regarded as his own. In that case, the court can use extrinsic evidence to establish the testator’s true intention in the will. However, if a testator leaves his estate to “my children” and has both biological and stepchildren, it will be more difficult to establish the testator’s intentions towards his stepchildren. It is for this reason that solicitors define all significant terms in a will.
It is not unusual for a testator to misspell or incorrectly identify a charity organisation 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 be the subject of expensive litigation. For example, in Tantau v McFarlane , the executor of an estate was forced to apply to the Supreme Court of Victoria in order to rectify a bequest to the “Art Gallery of Victoria”, which was intended for the “National Gallery of Victoria”. A testator making a charitable bequest should transcribe the name and details of a charity from the organisation’s own marketing material. Larger charities typically have a donation section on their website that gives the legal details of the organisation and also provides suggested wording for a bequest.
The team at Armstrong Legal can help if you are a testator or executor who has found a typo or spelling error in a will. The team can also assist if you need to apply for rectification of a will. Please contact the offices of Armstrong Legal on 1300 038 223 for any legal advice.