Non-Cancellation of Faulty Will

Is it possible that a faulty will made under duress will still be valid?

Yes! If a year has passed since the testator was under duress, and he could have cancelled the will, but has not done so , then the will be valid as if the fault is "cured".

Is it be possible that a faulty will written under threat is valid?

Yes, if the testator has chosen not to cancel the will and a year has passed since the threat stopped acting on him.

Can a will which is faulty because the testator was unduly influenced, be regarded as valid?

Yes, if at least a year has passed since the testator was subject to undue influence and has not cancelled it, although this was possible, then the fault is "cured" and the will becomes valid. Actually when the undue influence ceased to have effect on the testator will be tested according to the circumstances of each case.

Can a will which is faulty because the testator was subjected to trickery, be regarded as valid?

Yes, if at least a year has passed since the testator was aware of being tricked , and he has not cancelled the will , although this was possible, then the fault is "cured" and the will becomes valid.

Can a will which is faulty because the testator was defrauded , be regarded as valid?

Yes, if at least a year has passed since the testator knew about the fraud , and he has still not cancelled the will , although this was possible, then the fault is "cured" and the will becomes valid.

Can a will which is faulty because the testator made a mistake , be regarded as valid?

Yes, if at least a year has passed since the testator knew about the mistake , and he has still not cancelled the will , although this was possible, then the fault is "cured" and the will becomes valid.

How is it possible to know when the testator had a chance to cancel a will?

The court will examine whether, on the facts, the testator had a chance to cancel the will. For example, if the testator was in a very serious medical condition, and was unable to cancel the will , the clock will "freeze" and the one year period will start from when he was physically able to actually take steps for its cancellation.

Is it possible for a court to declare an instruction in a will ,made as a result of trap or fraud , valid?

No, such an instruction is cancelled.

When a court corrects an instruction in a will based on a mistake, can it use language different than that used by the testator?

Yes . The court is entitled to rephrase the instruction made because of a mistake, to make it clearer, as long as the court is clear about the testator's true intentions.

Could a situation arise whereby with the passage of time a faulty will can become valid?

Yes – whoever wishes to 'remedy' a faulty will must persuade the court that over a year has passed since the fault ceased to exist, and although the testator was able to cancel it, he did not.

Is it possible to correct a faulty will where the testator was unduly influenced?

Yes – if at least a year has passed since the testator ceased to be unduly influenced and he did not alter the will, although he was able to do so.

What happens if the testator was aware of a fault in a will for over a year but was passive about it?

If the testator was aware of the fault, but chose not to correct it whilst having the opportunity to do so for over a year , the court will regard his omission to do so as expression of his intention for the will to be valid.

What is the legal position if a testator who made a will with a fault is declared by court as no longer having legal capacity - during the very year in which he is able to cancel it?

The testator will be regarded as being prevented from cancelling the will because of the deterioration in his mental health, and it will be invalid.

If it is clear what the testator would have written had it not been for the mistake,can the Inheritance Registrar himself correct the will, thereby avoiding unnecessary court proceedings?

No! Only the court can correct the mistake.

What is the position when a fault in a will is based on a mistake in law?

The instruction in the will remains valid and the court cannot correct it.