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Home | Blog | The Will is wrong!

The Court has the power to fix Wills, but not without a very good reason

If the Court is satisfied that a Will does not accurately reflect a will-maker’s (“testator’s”) intentions then the Court can make an order that the Will be corrected after the testator’s death.

This power enables Courts to fix or rectify mistakes about the meaning or contents of Wills.

An application to rectify a Will must be not be made more than 6 months after the grant of Probate or Letters of Administration of the Will. If an application is sought after this time then consent must first be obtained from the Court.

To commence such an application, the usual course is to file a Summons and Affidavit in the Probate Registry of the Supreme Court. The Summons must set out what orders are sought from the Court and the Affidavit must, effectively, explain why. There are strict requirements regarding these documents, and we recommend a lawyer who specialises in Wills and Estates assist you.

Evidence as to the testator’s true intentions must be obtained. The testator’s actual intentions are the key to the Court making such an order. This can be determined from considering all of the circumstances surrounding the making of the Will.

The time for determining the testator’s intentions is the time he or she made the Will in question.

The Court must then be satisfied that the Will does not carry out the testator’s intentions.

The section of legislation that gives the Court power to rectify Wills is described as a ‘beneficial or remedial provision’.

Beneficial and remedial provisions are a little more flexible that other types of provisions. The Court interprets these types of provisions widely, fairly and liberally.[i]

However, it is still a serious matter. The power of the Court to rectify Wills allows the Court to alter a document that could change the destination of that person’s property after death. Justice Campbell expressed it well:

To allege that a testator, particularly when a will has been made in a formal fashion and with legal advice, has incorrectly stated, or unclearly stated, his or her intentions in that Will, is to allege a fairly grave matter[…][ii]

That is why ‘clear and convincing proof’[iii] is required.

If someone you know has died, and you believe their Will does not accurately reflect their intentions, then you may be able to apply to the Court for it to be rectified. Speak with one of our Wills and Estates Lawyers now.

[i] In the Estate of Josef Bernhard Nies (deceased) [2014] SASC 93 at [32]

[ii] Rawack v Spicer [2002] NSWSC 849 at [31]

[iii] Ibid.

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