Where There's a Will: Fixing Mistakes in the Making of a Last Will & Testament

Attorneys are wise to end their will-making sessions with great advice: now that you have a will, be ready to make another one. Many clients, however, suspect the advice is more about gravy than the grave. The truth is, though, wills always need changing, and as more time passes, these changes are more and more likely to be serious enough to thwart the intent of the testator. But apart from needed updates, what about genuine mistakes in the will? What legal burdens are faced when a party of interest has reason to believe a will contains serious mistakes?

Dealing with Mistakes in the Will

There are some mistakes that are terminal to creating a valid will if they are left undiscovered. Generally, a will contest is limited to mistakes of external validity: execution, testamentary capacity, testamentary intent, fraud and undue influence. Applying these limits allows a court to simultaneously protect the central intent of the deceased, and yet guard the intended beneficiaries.

Questioning possible mistakes in a will is also limited to parties who bear a direct, financial interest in any outcome.

Mistakes Discovered Before Death

Wills are one of the most important financial planning instruments people have available. Two of the most common ways of finding errors before death occur are:

  • When a testator attempts to partially revoke part of their own will; and
  • When a testator attempts to add clarifying information, especially through a codicil.

It is frequently the attempt to correct an error before death, and for some reason failing to do so (e.g., tearing out a part of the will but not the offending part), which leads to later grief when the the will containing the error is presented.

Mistakes Discovered After Death

To be valid, a will must be designed to take effect immediately upon death, not some future anticipation or potentiality beyond death. A will is also designed to apply in real time and at a real event. Some mistakes are so severe, no amount of judicial tolerance can fix them: if a testator signs the wrong will, the will is void. If the testator can be shown to be under the control of an overpowering insane delusion affecting the terms of the will, the will is rejected.

Most often, though, courts strive to implement the will's provisions, even when there is a mistake. Common examples in will contests have justified fixing mistakes, using four basic principles:

  • Plain Meaning. Plain meaning rules do not add or subtract language. If the will says 50 shares of ATT, but there had been a 3-1 stock split of those 50 shares...the will still passes 50 shares.
  • Erroneous Exclusion. Words mistakenly left from the will cannot be added.
  • Mistaken Belief. Innocent errors will not invalidate a will: believing incorrectly that a son is dead, for example, will not invalidate the will, and the son can take.
  • Misdescription. Though courts will not try to add words to effect clear intent, they have been inclined to omit words that are clearly mistaken.

There is a limited amount of time to contest, or bring up allegations of errors in, a will: typically, four months after probate ends so don't hesitate if you believe there has been an error.

Conclusion:

Some courts, rather than allowing a forfeiture under a hopelessly flawed will, have gone so far as to create a constructive trust, solely to perpetuate the plain intent of a testator. But thinking of a will in two stages of time, first as a living, financial planning device and second as a memorializing instrument after death, can hopefully guard against leaving behind a legacy of family loss or, worse, the recrimination of loving confusion.