The issue sometimes arises that a clerical error made in a will has a significant impact on the interpretation of the will and on whether the will is valid.

Ryan Murdoch O’Regan Lawyers acted in a case where the deceased had prepared a home-made will and had typed “I, [John Doe], hereby decline this to be my last Will and Testament.”

The problem was with the word “decline.”

When an application was made for a grant of probate, the Registrar of the Supreme Court (“Registrar“) would not issue a grant of probate because the word “decline” had been typed in the will instead of the word “declare”. The Registrar issued a requisition on the basis that the Registrar did not have the power to decide whether the deceased person intended the document to be their final will, with the effect that the matter needed to be heard by a judge.

Section 33(1)(a) of the Succession Act 1981 (Qld) allows the court to rectify clerical errors made in a will. An application must be made within 6 months after the date of death, otherwise leave of the court has to be sought to extend the time to make the application.

As with most applications to the court, it is necessary to provide evidence by way of affidavits as to the relevant facts and to make submissions to the court setting out arguments in support of the application. The success of an application cannot be 100% guaranteed and there is always the risk that the judge may not make the orders you are seeking.

While it may seem obvious that the word “decline” was a simple typing error that should have been typed as the word “declare”, it was necessary to provide affidavits to the court from the witnesses to the will setting out their recollection of the facts surrounding the deceased person making the will and signing the will in their presence. Witnesses do not always provide their addresses when witnessing a will and they can be difficult to locate many years after the will has been signed. Considerable cost can be incurred in locating witnesses, preparing and finalising their affidavits and making submissions to the court in support of the application.

While the court has the power to correct such simple errors in a will, it is far less stressful and less expensive if a person intending to make a will provides their will instructions to a lawyer who is experienced in making wills.

In the case mentioned above, the mis-typing of 2 simple letters in the home-made will cost the estate thousands of dollars for the court application.

How We Can Help

Ryan Murdoch O’Regan Lawyers’ experienced will lawyers ensure clarity and make sure that each will is proof-read and reviewed thoroughly prior to its signing. Contact Ryan Murdoch O’Regan Lawyers for a FREE Will Information Pack if you want to make your first will or would like to change your current will.

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Get the best representation. Contact Ryan Murdoch O’Regan Lawyers’ experienced will lawyers on 1800 999 529, email mail@rmold.newwebsite.live or submit an enquiry below.

We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.

This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.