Author's Mistake

What is an author's mistake ?

In general an error in spelling, grammar or punctuation which is made by the testator when making the will.

Can a will still be declared valid if it has an author's mistake?

Yes ! As long as it is possible to clearly ascertain the real intention of the testator , without any doubt, then the court or Inheritance Registrar can correct the mistake and uphold the will.

Is it possible to uphold a will that contains a mistake as to the description of a person or property ?

Yes ! As long as it is possible to clearly ascertain the real intention of the testator , without any doubt, then the court or Inheritance Registrar can correct the mistake and uphold the will.

Is it possible to uphold a will that contains a mistake as to a date or account number ?

Yes ! As long as it is possible to clearly ascertain the real intention of the testator , without any doubt, then the court or Inheritance Registrar can correct the mistake and uphold the will.

Can an author's mistake result in the cancellation of a will ?

No, it does not constitute a substantial or basic fault which would result in the cancellation of the will.

What are the options open when an instruction contains an author's mistake ?

If the court is unable to determine the testator's intention and correct the will, the instruction will not be cancelled, but will be carried out to the letter, providing it can be executed in practice, which involves it being clear about who should inherit what and how much etc.

Question:

Do courts look at the issue of "mistakes" in wills, and their correction, in a similar way to those made in contracts ?

Answer:

No . There is a different approach. Firstly, wills are unilateral actions and the aim is to uphold the testator's true wishes . In contrast, contracts are bilateral actions, between two people. Contracts made upon the basis of alleged mistakes are easier to correct because one can more easily ascertain the parties' thinking/actions in the absence of the mistake because they are still alive to ask. In regard to wills, when probate is applied for, the testator is not alive to do this. Accordingly, get caution must be exercised when objections are raised to probate based on mistake.

This point was emphasized by Tel Aviv Family Court in February 2007. The court held that it was not its job to create a "new will" or to examined what is just and desirable. The guiding force behind its thinking must be to uphold the testator's true wishes. The court cannot interfere with the testator's thinking and "correct" it after his death so that the result between the beneficiaries is more "equitable".

Is there an alternative, quicker way of correcting an author's mistake in a will, other than asking the Inheritance Registrar or court to do so ?

No ! There is no way of by-passing this procedure. Only the Inheritance Registrar or court can have jurisdiction to correct an author's error in a will.