Fixing errors in Wills

Date: Mar 28, 2012
Document Type: Article

Barry was a keen fisherman and throughout his life owned a succession of boats. In his Will Barry wanted to leave a 40ft launch called “The Rum Baba” to his daughter Tina who shared his passion for fishing.

Before he died, Barry told Tina that he would leave her “The Rum Baba” when he died. Not long before his death Barry engaged his solicitors to handle the sale of “The Gin Palace” an identical boat to “The Rum Baba”. At the same time he had the same solicitors draft his will. He told the solicitors that he wanted to leave Tina “his boat the Rum Baba”, however, the solicitor drafting the will, who was also handling the sale of the “The Gin Palace” mistakenly drafted the will to read:

  1. “I leave to my daughter Tina Locke, my 40 ft launch known as “The Gin Palace”.
  2.  "I leave the rest of my estate to my daughter Karen Locke.”

When Barry signed his will he failed to pick up the mistake. When Barry died “The Gin Palace” had already been sold and as a result Tina was left without an inheritance.

When such an error is made there are several options open to a beneficiary in Tina’s position. She could:

1.    apply to the court to have the will rectified. Under s27(1) of the Succession Act 2006 The Court may make an order 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 error was made, or

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

A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator. The solicitors who made the drafting error would usually be ordered to pay the costs of the application.

2.    lodge a claim under the Succession Act 2006 for provision out of the estate on the basis that she, as a daughter, is an eligible person and as her father evidenced an intention to leave her his boat “The Rum Baba” there is an argument that she should inherit “The Rum Baba”.

If you need help drafting your will or believe you have been left out of a will because of an error in the drafting contact Dominic Wilson on 02 8268 4000 for assistance.

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