Despite a will-maker’s (called a testator) best efforts to ensure that their Will is accurate and correct, a Will (particularly if self-drafted) may contain a typo or spelling error. A Will’s validity may be unaffected by a minor mistake, but some errors can have serious consequences. A will containing a typo or spelling error can introduce uncertainty over the testator’s intent or prevent the easy identification of an asset or a beneficiary.

Correcting spelling errors and typos In Wills

There are several ways a testator can fix an error in their own Will:

1. minor errors can be corrected by crossing out and writing in new words, but such alterations will only be legally valid if they are signed in the presence of two witnesses and properly executed;
2. making a codicil to the Will deletes the clause containing the typo or spelling error and replaces it with a correct version. However, the execution of a codicil must comply with the same statutory requirements as a Will and it must refer to the original Will and be stored in the same location.
3. the safest approach to correcting even a small error in a document is to create a new Will which complies with legislative requirements. This allows the testator to correct any spelling error or typo in a Will and make any updates.

Discovering errors after testator’s death

An executor may discover a misdescription of an asset or a beneficiary in a Will only after the testator’s death when they apply for probate or start to administer the estate. A spelling error or typo in a Will can prevent the executor from fulfilling the testator’s intention. The executor may ultimately need to apply to the court to resolve the ambiguity, causing additional expense and delay.

Rectifying a typo or spelling error In a Will

The Supreme Court of NSW can rectify spelling errors and typos in wills to fulfil a testator’s clear instructions. The Succession Act 2006 provides that the court can rectify a Will that has a clerical error or does not give effect to the testator’s instructions. An application to the Supreme Court of NSW for this kind of rectification of a Will must be made within 12 months of the date of death. The court may grant an extension in certain circumstances, provided the estate has not been fully distributed.

Rectification

A spelling error or typo seldom invalidates a Will. The key issue is whether the court can discern the testator’s true intention. For example, the court can fix a misidentified property if it is clear which property the testator meant. However, resolving this issue can be much more difficult if the testator misidentified a property and it is not clear which property they meant.

Issues can also arise when the language used in a Will is imprecise. For example, a testator may leave her estate to “my children” when she has no biological children but has stepchildren that she has always regarded as her own. In that event, the court can use extrinsic evidence to establish the testator’s true intention. If, however, a testator leaves her estate to “my children” and she has both biological and stepchildren, it will be more difficult to establish the testator’s intentions towards her stepchildren. This problem can be addressed by defining all significant terms in a Will.

A charitable bequest is valid only if the organisation’s name is correct. If a testator incorrectly identifies or misspells the name of a charity in their Will, the gift may fail or be the subject of expensive and lengthy litigation.

A testator making a charitable bequest should transcribe the name and details of a charity from the organisation’s own marketing material. Larger charities usually have a donation section on their website setting out the organisation’s legal details and suggesting wording for a bequest.

Here to Help

Contact us if you need assistance reviewing or preparing your Will, or to discuss the construction or rectification of the Will of someone who passed away.