• Ellison Moschella & Co

Rectification of Wills

Updated: Mar 9, 2021

What happens if a will doesn’t accurately record a will-maker’s intentions?

As an example we have a case at the moment where another firm of solicitors drafted a will to refer to a particular beneficiary however failed to gift any part of the estate to that beneficiary. Such a problem could arise from something as simple as a typo or grammatical error but it is something which will need to be addressed.

In circumstances like this, it may be necessary for an application to be made to the Supreme Court seeking the rectification of the will.

The Supreme Court has the power to rectify a will pursuant to section 33(1) of Succession Act 1981 (Qld). This section provides:

‘The court may make an order to rectify a will to carry out the intentions of the testator if the court is satisfied that the will does not carry out the testator’s intentions because –

(a) a clerical error was made; or

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

There are time limits however so you should seek legal advice as soon as possible once you become aware of such a problem.

Whether the court will order a rectification depends upon the court accepting evidence that the problem arose due to some accidental or inadvertent conduct. This is an easier task if the will-maker used a solicitor to prepare their will as those solicitors would usually have notes of the instructions which could be submitted to the court. Proving someone wasn’t aware of a mistake or aware of the effect of their own drafting is extremely difficult from beyond the grave.

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