The golden rule of when to update your Will: change it 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. However, the Will may not set out your wishes due to problems with drafting, such as ambiguous drafting of or clerical errors.
What if my Will isn’t up to scratch?
Rectification
The Succession Act 2006 (NSW) (sec 27) allows you to apply to the Court to rectify a deceased person’s Will to carry out the Will-maker’s intentions, if the Court is satisfied the Will does not carry out the Will-maker’s intentions because it:
- contains a clerical error, or
- does not give effect to the Will-maker’s instructions.
An application for rectification must be made if the estate has not yet been distributed and within 12 months from death of the Will-maker (unless the Court agrees to an extension).
Rectification cannot change an invalid Will into a valid Will.
Construction
Construction tries to determine what the Will-maker meant, by reading the Will as a whole, and attempting to attribute the intention from the words used by the Will-maker.
The first step in construction is to read the Will on its own and in the absence of any outside context. If the Will-maker’s intentions cannot be easily deciphered, then the Court should decipher the Will using the principles of construction.
While proceedings for rectification can act to re-write a Will, in proceedings for construction, the Court cannot re-write the Will but can give a meaning to the words within it.
The Succession Act (sec 32) sets out the use of extrinsic evidence of the Will-maker’s intention for Wills made after 1 March 2008.
There are no statutory time limits in applications for construction of a Will.
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 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.
Here to Help
Contact us now for assistance reviewing or preparing your Will, or discussing the rectification or construction of the Will of someone who passed away.
