Correcting mistakes in wills

Today's post has been written by James Steele, a very accomplished lawyer from the firm of Robertson Stromberg LLP in Saskatoon. James works in estate litigation and would be a great contact for those of you in that part of the country who need a good estate lawyer to help out with a dispute. Here is his article about correcting wills:

A carefully drawn will is crucial. Wills are drawn by humans, however, and some mistakes inevitably arise. Wrong words can end up in a will by slip of a pen. Or a deceased might use words which are not a correct way of describing persons or property. Or perhaps the lawyer just didn’t quite understand what the deceased was trying to say.

In some cases, the law can allow you to “rectify” – or fix – such a will. 

Evidence:
The goal here is to convince the court of what the testator meant to say, and what went wrong. The first step is to gather firsthand evidence surrounding the will, like the original instructions, and how the mistake arose. 

Courts are more comfortable admitting and considering this evidence when it comes from the solicitor who drafted the will, rather than relying on evidence from the beneficiaries who may have motivations to change a will in their favor. Thus, you should begin by trying to find out more from the lawyer involved.

Other times, there might be clear-cut written evidence from the deceased’s own hand. A good example of this came from my home province of Saskatchewan. In the case of Heaton Estate, the deceased had provided the lawyer with a written memo showing her wish to benefit certain southern Saskatchewan museums with a 20% share of her estate. By mistake, the ultimate will only provided a 10% share to the museums.

The court was provided the deceased’s handwritten memo,  and found that the deceased had indeed wanted “her generosity to be applied as per her memo.” Therefore, the museums received 20% and not 10%. To make this happen, the court effectively “added” the necessary words to the will.

Conclusion:
So long as wills are drafted by humans, mistakes will occur. If you encounter a drafting error in your loved one’s will, you should consult a lawyer on whether rectification can help fix it.

James Steele is an lawyer with Robertson Stromberg LLP in Saskatoon, Saskatchewan (j.steele@rslaw.com). He practises in the area of estate litigation. The above constitutes general overview of the subject only, and readers are advised to consult a lawyer for specific advice.