error-on-paper

Mistakes happen, even in wills.

Despite best efforts by those who draft them, some wills contain errors, oversights, ambiguities, spelling mistakes or even all of the above.

What happens in such cases? And what should the executor do?

True intent

A will usually can’t be overturned on a typo, says Rick Carlson, partner with Cuelenaere Kendall Katzman & Watson in Saskatoon, Sask. “Spelling errors and such will not invalidate a will,” he says. “An incorrect description of a property when everyone knows what was intended can be rectified by the court. Other, similar errors can be corrected and may not be fatal.”

Carlson explains the key issue is the true intent of the testator. “The court will interpret a will to ensure that [the testator’s] wishes are carried out—so long as it is satisfied of that intent under the circumstances,” he says. “It won’t normally re-write the will, but where the will contains a drafting error, the court will generally accept and rectify it.”

That said, specific bequests can fail if ownership of a gifted property is in question: “For example, [if] someone wills property to a beneficiary and the gift [is] found invalid because the property was actually held by the testator’s corporation and not the testator personally,” Carlson says. “Whoever receives the shares would effectively be entitled to the benefit of the company owning that property. In that case, the wishes of the testator might fail.”

Dealing with ambiguity

John Barber, founder of Assiniboia Law Office in Winnipeg, Man., sees more uncertainty than outright errors in wills. “Sometimes […] there’s uncertainty with regard to what the will actually means—something not clear enough to identify, for example, who’s to receive a gift under the will, or what that gift might amount to.”

It’s not the executor’s job to correct an error or clarify an ambiguity. “That’s completely out of bounds,” Barber says. “[Executors] have to carry out directions as they are expressed. And if there is ambiguity, then it’s incumbent on the executor to make [an] application to court to get that issue determined.”

In some cases, going to court may be unnecessary; beneficiaries may be willing to agree on the meaning of the ambiguity. But not always. “Obviously if one person’s going to benefit more by one interpretation, they may not want to do that,” Barber says. “Thereby you need the order from the court to determine the matter finally.”

Barber says executors who fail to seek a judge’s interpretation are taking on considerable risk. “If they choose not to, and go and make distributions anyway, then any one of the beneficiaries can bring the matter back to court and can question the conduct of the executor,” Barber says. “[The executor] potentially could be personally responsible for that.”

If a beneficiary believes a will contains an error, the burden is on that person to prove it is a mistake. “Once [a will] is signed, it’s treated as if that was the intention of the maker,” says Barber. “Anybody alleging something different has an uphill battle to establish the fact that it should have said something else.”

Such an effort requires considerable time and money, Barber says, and may ultimately be ineffective. He recalls a case in which three adult children alleged an error in their father’s will. A provision in the will gave a fourth child the option to purchase a family property for $40,000; if it was purchased, then a gift of $10,000 would go to the other three children. In the years since the will was drafted, the property value had risen to over $200,000, allowing the fourth child to purchase it for $40,000, give the required gift to the other heirs, and pocket the difference.

“Hardly fair,” Barber concedes. “But the court succinctly said the person should have updated his will.”

What invalidates a will?

A minor error such as a spelling mistake typically doesn’t invalidate a will.

What might?

Being mentally unfit. The testator was not of sound mind when preparing the will due to a mental condition such as dementia or Alzheimer’s. Improper signing or witnessing. A will may be finalized, but not signed or witnessed properly according to the relevant jurisdiction’s rules. Undue influence. Evidence that a will was written under undue influence by another individual (typically a beneficiary). Fraud. Proof that a will’s contents were falsified or changed without the testator’s knowledge, or that the testator was unaware of what was in the document when signing it.

James Dolan is a Vancouver-based financial writer.

Originally published in Advisor's Edge

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