Recently we were able to protect our clients share in a deceased estate where they were provided for by their grandmother.
Badly drafted wills can cost you your inheritance. Recently we were able to protect our clients share in a deceased estate where they were provided for by their grandmother. The grandmother provided for her estate to be shared between specified relatives and their children. The deceased prepared notes and saw a local solicitor who drafted the will, which was duly signed and witnessed.
However the will was drafted incorrectly and provided for the grandchildren to share with one of the Trustees instead as provided in the deceased notes to take the whole share. The reduction in the share amounted to in excess of $100,000. In order to protect the inheritance of our clients an application to the Supreme Court of NSW was made seeking orders that the will be rectified by the Court to read as stipulated in the notes of deceased provided to her solicitor. This required evidence of what was the true intention of the deceased and whether the will reflected that true intention.
Before the Court can rectify a Will it must be satisfied that a Will is so expressed that it fails to carry out the testators intentions, it may order that the Will be rectified so as to carry out the testators intentions. An application for this order shall be made before the expiration of 12 months after the death of a testator however the Court may grant leave to extend that time if it is satisfied that sufficient cause is shown.
The law of rectification is usually applied where the Court is satisfied there is sufficiently clear evidence of a relevant mistake of the true intention of the testator. What needs to be established is that the Will is so expressed that if fails to carry out the testators intentions. There must be evidence of what the testator’s clear intentions were before an order for rectification will be successful. For example where a testator never had an intention relevant to the situation which actually occurred rectification would not be available. Rectification has been made in situations where a solicitor has made a mistake in drafting the testamentary documents.
The standard of proof required to rectify a document is said to be convincing proof which must be advanced to show that the written document does not embody the final intention of the party and that the omitted ingredient is capable of proof in clear and precise terms.
We were able to persuaded the Court that the true intention of the deceased was not properly recorded in the Will and obtain an ordered the Will be rectified with the effect that the grandchildren kept their full share of their inheritance.