Plan your Will carefully to avoid the need for Courts to step in

Rectifying a Will after Death

Your Will is one of the most important documents you will ever create.

Not only does it ensure your loved ones receive the benefit of your life’s work but it also conveys your final wishes and instructions.

There are many ways to document your will – from a professionally drafted Will with your solicitor to a ‘do it yourself’ kit.

However, what happens when the drafting goes wrong and instead of ensuring certainty, the wording of your wishes actually creates confusion after your death so that your intentions are unclear?

Why would a Will need to be Rectified?

As with all legal documents, the wording of a Will needs to be specific and accurate.

Any ambiguity can cause issues for the administrators of your estate and unnecessary delay.

For example, if you specified that you wanted Jane to receive your car, but upon death you owned two cars, a question arises as to whether Jane receives both cars, or if not, which car you intended her to receive.

Assets can also change or be converted. The classic example of this is where cash in bank intended to be specifically gifted to a beneficiary is then converted to an investment in shares or similar.

Where wishes are too vague and/or no asset can be identified, there is a very real risk that the gift might fail, leaving your beneficiary with nothing.

Courts can, in some circumstances, step in to rectify this situation.  If the intention of the Will cannot be ascertained, an application might be made to have the Court rectify the wording of the Will to enable proper administration of the estate.

How long do the courts have to rectify a Will?

This varies from State to State.  In some States, the time limit is six months whereas this period may be as long as 12 months in other States.  Generally the Courts are very strict on these time-frames, but recent decisions indicate they may be leaning towards a little more flexibility.

In the Will of Thomas Henry Finch (dec’d) [2018] QSC 16, an application was made to the Court for an extension of time three-and-a-half years after the death of the testator.

The dispute had arisen among the administrators regarding a relocatable home owned by the deceased of considerable value.

The Will had specified that any real property was to be bequeathed to the testator’s daughter. However, as the home was not on land that was owned by the deceased, it was considered a ‘chattel’ or item other than real property.

Unable to resolve this, the administrators of the estate applied for an extension of time so that the Courts could consider this.

The Court ultimately granted this and considered a number of factors.

However the intention of the deceased was paramount. It was discovered that the deceased had attempted to transfer ownership of the relocatable home to his daughter prior to death and when he had instructed his solicitor to update his will had specified ‘my house’.

The court ruled this was a clear intention to leave the home to his daughter and authorised the Will to be rectified to read “my house” rather than “Any real property owned by me at the date of my death”.

Key Takeaways

We are seeing an increasing flexibility with Courts stepping in to rectify Wills, and even granting Probate on video messages and text messages recording a deceased’s wishes.

But what is often not mentioned is the cost to the Estate and stress to families in seeking such relief.  Legal costs can be in the tens of thousands of dollars to make applications such as these, causing the Estate proceeds to be eroded.

Estate planning by comparison is a small investment in ensuring your wishes are carried out as you intended and reducing the stress to those you leave behind. It is equally important to ensure that you regularly review your Estate plan, as circumstances often change.

If you would like to find out more about planning your Will, please contact our Wills and Estates team.

This article was written by Jessica Attard, Paralegal – Private Clients | Wills and Estates