What if Your Will Has a Mistake?

This happens all the time – someone writes an e-mail with a typo, spell-check does not pick it up, and the email is sent out with a mistake in it.  When this happens in an email, it’s usually no problem.  Send another email clarifying what you meant – or the recipient may be able to infer from the context what you meant to say.

If the mistake is in your will, you could fix that mistake by going to your lawyer or notary and having a new will drafted.  You could fix the mistake on your original will as long as the correction is properly witnessed (but be very cautious about revising your will without professional advice).

But what happens if the mistake is in the will of a person who has already died?  The person who wrote the will (called the testator) clearly cannot clarify the error or put it into context.  There is no reliable guide for what the testator’s intentions were.  For that reason, the Courts in British Columbia have had a limited ability to fix a mistake in a will.

Currently, Courts are limited in what they can do to fix a mistake.  Before probate of a will is granted, a Court can only delete words that appear in error.  After probate has been granted, a Court could ignore an unnecessary or inaccurate portion of a description or infer a correction by implication from the text of the will.

It is expected that sometime in 2012/13, British Columbia will bring into force a new law that will give broader powers to a Court to correct errors in a will.

Under the Wills and Estates Succession Act, a Court will be given the power to rectify the will if the will fails to carry out the testator’s intentions due to an error arising from an accidental slip or omission, a misunderstanding of the testator’s instructions, or a failure to carry out the testator’s instructions.  The Court will have the power to rectify the will before or after probate.  A Court will likely have the power to admit additional evidence to assist in fixing the mistake.  For example, the Court may be able to receive evidence such as the notes of the will instructions, draft wills, correspondence with the testator and the oral evidence of the lawyer or notary who took the instructions.