This article was prepared for Irwin Legal with the assistance of Mr Sami Abbas.
When a will is drawn up, diligent effort must be made to ensure its accuracy and correctness. However, typographical errors or spelling mistakes are not uncommon, especially in self-drafted wills. Notably, such errors do not ordinarily invalidate the will.
If a will inaccurately identifies the property, the Court may rectify it if the testator's intended meaning is evident. In each State and Territory, the wills legislation confers jurisdiction on the Supreme Court to rectify a will in order to carry out the testator's intentions. It is contained in section 50 of the Wills Act 1970 (WA) in Western Australia.
Instances where a will may necessitate rectification are diverse. Examples include:
- references to "children" when stepchildren were the intended beneficiaries;
- insufficient descriptions of property;
- inaccuracies in the names of organisations designated as gift recipients; and
- errors in the execution of mirror wills by partners.
Tantau v McFarlane [2010] NSWSC 224 is a notable case exemplifying the need for rectification. In that case, the Court intervened to rectify a will that erroneously named the "Art Gallery of Victoria" as the beneficiary by making orders to ensure it reached the intended recipient, the National Gallery of Victoria.
This underscores the importance of accurate details in wills, particularly concerning charitable bequests. To avoid such errors, testators are advised to obtain precise information from the charity's published materials, often available on their website, which may include their legal name, ABN (Australian Business Number), and even the suggested wording for charitable benefit clauses in wills. Large charitable organisations frequently provide this information to facilitate the expression of accurate testamentary intentions.
Section 50(1) of the Wills Act 1970 (WA) explicitly outlines the conditions under which the court has the authority to rectify a will. According to this provision, the court is empowered to rectify a will only when it is satisfied that the will fails to carry out the testator's intentions due to either a clerical error or if the will does not give effect to the testator's instructions. As Justice Pagone explained in ANZ Trustees Ltd v Hamlet [2010] VSC 207 (a case concerning the Victorian equivalent of section 50(1)), the Court's power to rectify is not to be used as an alternative to adequately construing a will, if the meaning is unclear. Instead, it is a precondition to rectifying a will that the Court must directly conclude that, on its proper reading, the will does not reflect the testator's true intentions. In other words, the Court is ensuring that "if it ain't broke, don't fix it"!
The next part of the series will discuss the passing of accounts process.
Disclaimer: The information provided here is for educational purposes only and should not be considered as legal advice. If you require assistance or advice in will rectification, please contact Irwin Legal or any other qualified legal practitioners. We recommend contacting us on (08) 9221 8337 or at admin@aristei.com.au if you wish to speak confidentially about your situation and seek legal assistance. Legal matters can vary based on laws and regulations, and seeking professional advice for your situation is important.