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‘That’s not what I meant to say’ – Interpreting your Will

News and ViewsPublications‘That’s not what I meant to say’ – Interpreting your Will
‘That’s not what I meant to say’ – Interpreting your Will

'Once you sign your will, you should be able to relax in the knowledge that your wishes have been accurately reflected. '

Geoffrey Kertesz

Partner

Lavinia Randall

Solicitor

Once you sign your will, you should be able to relax in the knowledge that your wishes have been accurately reflected. Unfortunately, things can go wrong when making a will and mistakes can go unnoticed until it is too late (ie when you are gone). For example, a will might contain typing errors, have missing clauses or pages, or the wording might not be terribly clear.

Either way, your intentions have not been reflected but you are no longer around to make a new will or tell people what you meant to say. Can anything be done to correct the mistake?

Construction

One option for the court is to consider whether the wording of the will can be ‘construed’ in a way that reflects your intention. There are legal rules and guidelines for construing the language of legal documents, including wills. The court’s aim is to identify your intention by interpreting the words used in light of:

  • their natural and ordinary meaning;
  • the overall purpose of the will;
  • any other provisions of the will;
  • the facts known or assumed by you at the time you signed the will; and
  • common sense.

Unlike other legal documents, when construing the language of a will the court can also consider any other evidence of your intention such as earlier drafts of the will, as well as notes made by you or conversations with you at the time the will was signed.

However, the court might conclude that the words have a clear meaning and there is therefore no point in trying to construe them.

Rectification

Another option open to the court is to ‘rectify’ the Will to correct an error which was the result of either:

  • a ‘clerical error’ such as a page being missed out whilst printing or words missed when copying and pasting, or
  • a failure to understand the instructions of the person whose will it is.

Rectification could include adding in words which were omitted or taking out words which were incorrectly included. A court can only rectify an error in a will where there is clear evidence as to what you intended and how you would have expressed this in your will, such as notes from the time or previous drafts of the will.

Typically, rectification will relate to a few words within a will which have a significant impact and, generally speaking, the greater the extent of the correction requested, the more difficult it will be to succeed in the application. In an extreme case, Marley v Rawlings, a couple accidently signed each other’s wills, and the mistake was not noticed until both had died. The Supreme Court rectified the error by replacing all of the typed parts of the will signed by the husband with the typed parts of the will signed by the wife.

Taking professional advice when making a will can help to ensure that mistakes are avoided and your intentions are accurately reflected. If you think that a mistake has been made in a will or that its meaning is unclear it is important to investigate and seek advice at an early stage as there may be short time limits for making an application to the court.

28 Apr 2017

Geoffrey Kertesz

Lavinia Randall