Updated 25 October 2026
CM Law's Ultimate 50 List: Making a Will #49 -Can a will be changed after death?
Back to the 50 most asked questions about making a will
An executor or beneficiary cannot simply rewrite a will after the person who made it has died. However, NSW law provides several ways to correct errors, resolve uncertainty, challenge an invalid will or change the eventual distribution of an estate.
The distinction matters. A drafting mistake, an allegation of undue influence and a claim for financial provision require different evidence and legal procedures. A family agreement may also be possible, but agreement alone does not remove every legal or tax issue.
What an executor can and cannot do
An executor administers the estate under the will and the law. Their responsibilities include identifying assets, paying liabilities and distributing what remains to those entitled. Appointment as executor does not authorise them to replace beneficiaries or change inheritance percentages because they consider another outcome fairer.
An executor may have powers to sell assets, make investments or allocate particular assets towards a beneficiary’s entitlement. Exercising an existing power is different from rewriting the entitlement itself. Where a dispute arises, the executor should obtain advice before making a distribution that could prejudice someone’s rights.
Correcting a drafting mistake through rectification
Under section 27 of the Succession Act 2006 (NSW), the Supreme Court may rectify a will where it fails to carry out the will-maker’s intentions because of a clerical error or because it does not give effect to their instructions.
The court needs evidence of both the problem and the intended result. The drafting solicitor’s file, instructions, earlier drafts and relevant correspondence may therefore be important. A disappointed beneficiary’s belief that the deceased would have preferred a different outcome is not enough by itself.
An application ordinarily must be made within 12 months after death. The court may extend that period if it considers an extension necessary and the estate has not been finally distributed. This makes early investigation important, even where everyone initially believes the mistake is obvious.
A real NSW example of rectification
In Re Will of McCowen [2013] NSWSC 1000, the deceased instructed his solicitor to benefit his wife, leave $1,000 to each of his three younger children and divide the residue between his three elder children.
The solicitor’s notes recorded those instructions. However, a paralegal misread them when preparing the will, which instead divided the residue between all six children. The deceased signed the document before the solicitor checked it.
The Supreme Court ordered rectification. The drafting involved a clerical error and failed to give effect to the deceased’s instructions. The case illustrates why the original instructions matter: the court corrected a demonstrated drafting failure rather than deciding which children deserved a larger inheritance.
Interpreting unclear wording
Sometimes the issue is what the existing words mean. The court may be asked to construe, or interpret, a will to determine how a particular gift or clause operates.
Section 32 addresses when evidence outside the will, including evidence of intention, can assist interpretation where the language is meaningless or ambiguous. There are limits on how that evidence can be used, particularly where ambiguity is said to arise from surrounding circumstances.
Interpretation and rectification are different remedies. The correct approach depends on whether the difficulty concerns the meaning of the words used or a qualifying mistake in the document. Family recollections do not automatically override the written will.
Challenging whether the will is valid
Fraud, forgery, undue influence, lack of testamentary capacity, or lack of knowledge and approval may raise questions about validity. Problems with signing or witnessing can also require investigation, although some informal documents may be recognised by the court.
The Supreme Court’s guidance on contested probate explains these grounds. A successful challenge may result in an earlier valid will governing the estate, or intestacy rules applying if there is no valid will. It does not simply give the family permission to write a replacement.
Get advice promptly if validity is disputed, preferably before probate is granted and assets are distributed. The deadline for family provision claims should not be treated as a universal deadline for every kind of estate dispute.
Family provision claims can change inheritance outcomes
A family provision claim asks whether an eligible person has received adequate provision for their proper maintenance, education or advancement in life. It can be made without alleging that the will is invalid.
Under sections 57–60 of the Succession Act, eligibility includes spouses, de facto partners, children and former spouses. Certain dependent grandchildren or household members, and people in a qualifying close personal relationship with the deceased, may also qualify. Being a relative or having helped the deceased does not automatically establish eligibility.
The court considers the statutory requirements and circumstances, including financial needs, competing claims, the relationship with the deceased and estate resources. Some eligibility categories must also establish factors warranting the application. Equal division is not guaranteed.
The usual filing deadline is 12 months from death, not from probate. Section 58 allows a late application where the court orders otherwise on sufficient cause being shown or the parties to the proceedings consent. Do not assume either exception will be available.
A family provision order can alter what beneficiaries receive. Section 72 gives the order effect as a codicil to the deceased’s will or, on intestacy, as a will. Legal Aid NSW also explains that an unsuccessful claimant may have to pay legal costs; payment from the estate is not automatic.
Can beneficiaries agree to a different distribution
A deed of family arrangement can record an agreed redistribution or settlement. It does not mean that the deceased personally amended their will. The people whose entitlements are affected must validly agree, or their interests must otherwise be lawfully dealt with.
Extra care is needed where children, people without decision-making capacity, or contingent and unborn beneficiaries have interests. Court involvement may be necessary. A private arrangement cannot simply disregard creditors or bind someone whose rights have not been properly addressed.
Nor does a general promise not to claim necessarily settle family provision rights. Under section 95 of the Succession Act, a release of the right to apply for family provision takes effect only with court approval, to the extent that approval remains in force.
Tax and transfer duty also need checking before anyone signs. Revenue NSW explains that receiving an additional property share under a family arrangement may attract duty on that additional entitlement. Capital gains tax treatment depends on the assets and transaction; it should not be assumed that every redistribution is tax-free.
What to do if you think a will needs correcting
Start by identifying the actual problem and obtaining the will and any codicils. Record the date of death, check whether probate has been granted and find out whether distributions have occurred. Preserve relevant emails, letters and other documents without marking or altering the original will.
A solicitor can identify the appropriate remedy, investigate the evidence and advise whether urgent steps are needed. Negotiation or mediation may help resolve a dispute, but discussions alone do not suspend a filing deadline.
For future planning, give clear instructions about beneficiaries, substitute gifts and the residue of your estate. Review your will after significant family or financial changes. A letter of wishes may provide context, but it should not be relied upon to repair defective drafting or replace a properly prepared will.
Speak with CM Lawyers
Our wills and estates team can advise on will drafting, estate administration and disputes about inheritance. If you are concerned about an error, an executor’s proposed distribution or your position as a beneficiary, contact CM Lawyers to discuss the documents and relevant deadlines.
Call (02) 9557 9000 or email lawyers@cmlaw.com.au. Our office is at Level 3, Unit 3.07, 18–30 Faversham Street, Marrickville NSW 2204.
This article provides general information about NSW law and is not a substitute for legal advice about your circumstances.
Key resources
