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Reformation of a Will, Correcting Mistakes After the Person Dies

On Behalf of | Jan 7, 2021 | Elder Law, Estate Planning, Personal Representative |

Consider a situation where Uncle Charlie prepares a Will intending to leave his home located at 1313 Mudbird Lane to his nephew, Jim, and the reminder of his estate (called the residue) to his other nephew, Tom. In lawyer’s terms, the gift to Jim is a specific devise and the gift to Tom is a residuary devise. Charlie’s Will designates his brother Andy to serve as Personal Representative. Prior to his death, Charlie thinks that his Will carries out his intentions so that Jim will get the home and the rest of his estate will go to Andy.

However, after Charlie dies, it is discovered that Charlie’s Will actually reads as follows:

To my nephew Jim, if he survives me, I devise all of my right, title and interest in and to my home located at 1313 Mockingbird Lane. To my nephew, Tom, if he survives me, I devise all of my right, title and interest in and to the rest, residue and remainder of my estate.

Charlie intended to leave his home to Jim but he incorrectly identified his home as located as 1313 Mockingbird Lane. In other words, the Will contains a mistake. In this case, what happens to the home? Andy is uncertain how to carry out his duties as Personal Representative as it relates to the home since the terms of the Will are not correct. If the Will is read literally, Charlie does not own any right, title and interest in 1313 Mockingbird Lane so there’s no such home for Jim to receive. If the devise fails because of this mistake, the home would go to Tom. However, Charlie clearly intended Jim to receive his home.

Can anything be done to correct this situation? Fortunately, Florida law provides a solution. Fla. Stat. Section 732.615, entitled “Reformation to correct mistakes” provides as follows:

Upon application of any interested person, the court may reform the terms of a Will, even if unambiguous, to conform the terms to the testator’s intent if it is proved by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the Will were affected by a mistake of fact or law, whether in expression or inducement. In determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the Will.

There are a couple of observations to make about this statutory section. First, it provides for any “interested person” to apply to the probate court to correct this error. In this case, since both Jim and Tom are beneficiaries, they are interested persons. Andy is also an interested person since he is the Personal Representative. Any one of these three persons could apply to the court for relief. They would be asking the court to reform the Will, i.e. to modify it and correct the mistake.

The statute provides that the reformation of the Will can be made in order to make the Will conform to Charlie’s intent. The court cannot reform the Will in a way to satisfy Jim or that of someone else if it is not consistent with Charlie’s intent. All the court is doing is fixing the mistake in the Will.

Furthermore, the intent must be proven by “clear and convincing evidence.” Under the law, this standard of proof is higher than the average civil case which only requires the “preponderance of the evidence,” tip the scale. The court may consider evidence to determine Charlie’s intent. This could include real estate records showing that Charlie’s home was actually located at 1313 Mudbird Lane and that Charlie never owned a home at 1313 Mockingbird Lane.

If Andy petitions the court to reform the Will by correcting the mistaken address, the court can reform the terms of the Will so that Jim receives 1313 Mudbird Lane and Tom receives everything else. Charlie’s wishes are carried out and an unintended consequence due to mistake is avoided.


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