Rectification of a Will by Court

Date: Oct 03, 2013
Document Type: Article

This area of the law is interesting and complex. The power of the Court to rectify or fix a mistake in a will is limited. Many cases involving clear mistakes in a will are not capable of rectification.

Section 27 of the Succession Act 2006 gives to the Court the power 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 is made; or

b)     the will does not give effect to the testator’s intention.

Any person who wishes to apply to the Court for an order under s27 must apply to the Court within 12 months after the date of the death of the willmaker.

The Court may extend the period of time in which to make that application if it considers it necessary and final distribution of the estate has not taken place.

The general power of the Court to remedy a mistake in a will is limited.

The power of the probate division of the Supreme Court to remedy mistakes under the general law is more extensive. The Probate Court is concerned with the validly of wills in the Court’s function of making grants of representation. In doing so it may construe wills and may take into account factors which a court of construction may not, such as extrinsic evidence of the testator’s intentions.

The Probate Court’s general law powers to correct the testator’s mistake are subject to major limitations including:

a)     the Court has no power to add or alter words when admitting a will to probate even if there is clear evidence that the omission of the correct word or words was unintentional.

b)     the court cannot omit the words and phrases where the result would be to alter the sense of the remaining words

c)     where the error is a mistake of law or in drafting, whether the will drafter had the testator’s authority to use his/her own judgment, the Courts cannot rectify a mistake.

The power of rectify a mistake occurs at the time the probate is granted. The Court does not at that stage provide a binding interpretation of the will which it admits to probate.

Please call us on 8268 4000 if you wish to discuss any matter concerning wills or estates.

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