The Rectification of Wills

by Rob Jennings J.D.
Rectification is the process of fixing errors in a will.

Rectification is the process of fixing errors in a will.

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While attorneys and testators generally put a great deal of thought and attention to detail in drafting a will, the case may arise that after death the will contains serious inaccuracies or errors that run in direct conflict to the wishes of the testator. Under some circumstances, a probate court may be able to rectify, or correct, the will to make it better reflect the last wishes of the deceased.

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Burden of Proof

When a will contains a major mistake that prevents a probate court from giving the will the meaning intended by the deceased, an outside party can apply for a review of the alleged error and the petitioner's request that it be rectified. The burden rests upon the petitioner to prove that an error exists, that the error prevents the probate court from accurately interpreting the will and that what the petitioner is proposing reflects the wishes of the deceased. Meeting this burden can be difficult, as the person whose intentions the petitioner seeks to prove is now dead.

Time Frame

Each state has provisions relating to time constraints placed upon rectification requests or any other proceeding to challenge the validity or accuracy of a will. While statutes of limitations on actions such as personal injury or breach of contract can be several years in length, petitioners typically only have six months to bring a rectification proceeding. After the statutorily prescribed time has passed, the claims of the potential rectification petitioner and all other claimants will be forever barred. In general, the clock begins to run on all potential petitioners' claims when the formal probate process begins.

Wills Act

Although the rules regarding the execution and interpretation of wills rest in the individual legal codes of the states, many states have enacted some form of the Wills Act which governs the formal requirements of a valid will. According to the American Bar Association, the Wills Act requires will drafters to comply with three main formalities: written statements of intent, signing by the testator and signing by at least two witnesses. Failure to comply with these formalities, even if minor or incidental, can completely invalidate the will.

Modern Trends

A handful of states have adopted the Uniform Probate Code which seeks to achieve a uniformity among state probate laws. The American Law Institute has developed the Third Restatement of The Law of Property-Wills and Other Donative Transfers. Both of these resources, which are not law in and of themselves but rather serve as recommendations to legislatures and courts in wills cases, represent the modern trend towards preserving a testator's intent even where a will fails to comply with the formalities of the Wills Act.