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

When a testator finds an error in their own Will, there are several ways of fixing it.

Smaller errors can be corrected by crossing out and writing in new words, but such alterations will be legally valid only if they are signed in the presence of two witnesses and properly executed.

Another way is to make a codicil to the Will, which 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.

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 to bequests and beneficiaries.

Discovering errors after testator’s death

Sometimes spelling errors and typos in a Will are not uncovered until after the testator’s death. An executor may discover the mistake only when they apply for probate or start to administer the estate. A misdescription of an asset or a beneficiary 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 has discretionary power to 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 does not give effect to the testator’s instructions or has a clerical error. In NSW, the time limit for this kind of rectification of a Will is 12 months from the testator’s 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 to everyone what the testator meant to describe. However, resolving this issue can be a 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 his 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. That’s why solicitors define all significant terms in a will.

A charitable bequest is valid only if the organisation’s name is correct. If a testator misspells or incorrectly identify a charity in their Will, the gift may fail or be the subject of expensive and lengthy litigation. For example, in Tantau v McFarlane [2010], the executor of an estate had to apply to the Supreme Court of Victoria to rectify a bequest to the “Art Gallery of Victoria”, which was intended for the “National Gallery of Victoria”.

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.

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.