The golden rule of when to change your will is when you no longer have a document that properly sets out your current wishes.
This is usually due to changes in your feelings or circumstances. Unfortunately, it is also the case that sometimes the will doesn’t set out your wishes because there are problems with the drafting of the will itself, either with clerical errors or ambiguous drafting.
What happens if when I die, it turns out that my will wasn’t up to scratch?
Rectification
A person may apply to the Court further to section 27 of the Succession Act 2006 (NSW) (“the Act”) to rectify the will of a deceased 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.
An application for rectification must be made within 12 months from the date of death of the willmaker, unless the Court considers it necessary to extend this time, and if the estate has not yet been distributed.
The document which is sought to be rectified must stand on its own as a valid will. Rectification is not available to convert a document which is not a valid will into a will.
Construction
Construction is the process of trying to determine what the willmaker meant, by reading the will as a whole, and attempting to attribute the intention from the words used by the testator.
The first step in construction is to read the will, on its own and in the absence of any outside context. If intentions cannot be easily deciphered, then the Court should proceed to decipher the will using the principles of construction.
While proceedings for rectification can act to re-write a will, in contrast, in proceedings for construction, the court cannot re-write the will, but can give a meaning to the words in the will.
In NSW, section 32 of the Act sets out the use of extrinsic evidence of the willamaker’s intention for wills made after 1 March 2008, which outlines that:-
In proceedings to construe a will, evidence (including evidence of the testator’s intention) is admissible to assist in the interpretation of the language used in the will if the language makes the will or any part of the will:
(a) meaningless, or
(b) ambiguous on the face of the will, or
(c) ambiguous in the light of the surrounding circumstances.
Evidence of the testator’s intention is not admissible to establish any of the surrounding circumstances referred to in (c).
There are no statutory time limits in applications for construction of a will. However, construction of a will after an estate is finally distributed may pose difficulties and provide a reason for the court declining to consider the claim.
In the event that the will maker caused litigation by his or her use of ambiguous language, costs of the application may be ordered to come out of the Estate.
If rectification or construction cannot make sense of a will, it may lead to gifts and other clauses failing, and may lead to the need to apply the rules of intestacy, as if there was never any will made at all, either for some or all of the assets of the estate.
If you need assistance reviewing or preparing your will, or discussing the rectification or construction of the will of someone who passed away, contact Baker Love Lawyers.
