A Will is intended to give effect to a person's testamentary wishes and what should happen to their estate after their death. But what happens when the Will that was signed does not accurately record those wishes because of a drafting or clerical error?
The Supreme Court of Western Australia decisions of Jupp v Jupp [2025] WASC 315 and Hayes v Hayes [2026] WASC 361 demonstrate the Court’s power to rectify a Will where an error in preparing or executing the Will means that it does not reflect the deceased's testamentary intentions.
When can a Will be rectified?
Rectification is a process by which the Court can correct a Will so that it gives effect to the deceased's actual intentions.
Under the Wills Act 1970 (WA), the Supreme Court can rectify a Will where it is satisfied that the Will does not carry out the deceased's intentions because a clerical error was made, or the Will does not give effect to the testator's instructions.
The purpose of rectification is to ensure that the Will gives effect to the deceased's actual testamentary intentions.
The central question is therefore: “What did the deceased intend, and why does the Will fail to give effect to that intention?”
Jupp v Jupp : an old Will accidentally executed
Mr Jupp had instructed his lawyers to update his Will in 2019. However, due to an administrative error, an earlier 2014 version of the Will was printed and executed. The error was not discovered until after Mr Jupp's death. As a result, the executed Will did not reflect important changes he had instructed his lawyers to make.
Master Russell found that the mistake amounted to a clerical error and ordered the Will to be rectified. The Court was satisfied by the evidence of what Mr Jupp had instructed and approved, and that the proposed changes would give effect to those intentions.
Importantly, the Court also extended the time for bringing the application. Although a rectification application should ordinarily be made within six months of death, the Court can extend that period provided the final distribution of the estate has not occurred. Relevant considerations include the length and explanation for the delay, the prospects of the application, the interests of justice and any prejudice to interested parties.
Hayes v Hayes : drafting error discovered after death
Fort Knox Legal represented the successful applicant in Hayes v Hayes , to rectify the deceased’s Will so that the estate could ultimately be distributed in accordance with the deceased’s testamentary intentions.
In Hayes v Hayes , an error was made when the deceased's Will was drafted. The Will incorrectly nominated the deceased herself as the beneficiary of her estate. That error was not identified during the deceased's lifetime and was only discovered after her death.
The significance of the case is that a seemingly straightforward drafting mistake can have fundamental consequences.
Once the testator has died, there is no opportunity to ask them what they intended or to execute a corrected Will. The question becomes whether the Supreme Court can determine what the deceased intended and rectify the document accordingly.
In determining in favour of the applicant, Master Russell set out the applicable principles which the Court must be satisfied with before making an order to rectify a Will, which included:
“[15] (a) the testator's testamentary intentions at the time the will was made;
(b) that the Will, as drafted, on a proper construction, does not give effect to the testator's testamentary intentions;
(c) that the will does not express the testator's testamentary intentions because of a clerical error or because of a failure to give effect to the testator's instructions; and
(d) the proposed rectification is in a form that gives effect to the testator's intentions.”
The decision demonstrates the practical importance of the Court's rectification jurisdiction. Where a Will contains an error introduced during the process of preparing the document, rectification can provide a means of ensuring that the deceased's actual testamentary wishes are not defeated by an inadvertent drafting mistake.
Conclusion
If you believe a deceased person's Will contains an error and does not reflect their actual wishes, specialist legal advice should be obtained promptly. A careful review of the Will and the documents surrounding its preparation may establish whether an application for rectification is available.