Will successfully challenged after clerical error alters instructions

Published 07 Aug 2013

For many, it is reassuring to know that by writing a Will and keeping it up to date, their wishes regarding the distribution of their Estate will be respected when they pass away.

It can be just as comforting to know that it is possible to Contest a Will document if there is reason to believe it doesn’t represent the true intentions of a loved one.

This is one of the scenarios where people may challenge the validity of a Will or aspects within it in New South Wales.

This may happen when it is suspected that the person who wrote the Will lacked the ability at that time to understand the consequences of what they were doing – ie. they lacked testamentary capacity.

Another reason a Will may not square with its owner’s intentions is if there is a clerical error while it is being written.

Much depends on the way that clauses within a Will are constructed. Even the smallest discrepancies can lead to large differences in meaning.

A recent case before the NSW Supreme Court illustrates this point.

A man passed away earlier this year leaving behind six children (three from his first marriage and three from his second) as well as his third wife, with whom he had no children.

Several months before his death, the man had given instructions to his solicitor outlining how he wished his Estate to be distributed.

He communicated that he wished to benefit his third wife. The three younger children were to receive $1,000 each, and the residue (that part of the Estate that remained after the payments of debts, fees and bequests) was to be divided among the three elder children.

The solicitor passed these instructions on to a paralegal assistant who used them to type up the Will document.

The assistant, however, did not follow the solicitor’s notes to the word, and instead wrote that all six children were to share the residue equally – in addition to the $1,000 left to the younger three.

The work of this unqualified person was due to be checked by the Solicitor, but the latter was busy on the day that the man came into the legal office and insisted on reading, and then signing, the document.

The judge determined that this was a clerical error and allowed that the Will be rectified to represent the man’s true intentions.

For expert assistance with all matters relating to Wills and Estate distribution disputes, get in touch with Contesting Wills lawyers.

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