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shyam lal   17 February 2022

Will drafting

In the late fathers WILL sons name mentioned as Sudhir Sharma...where as the sons full name as per records read
Sudhir Kumar Sharma

Query ..does this difference in name mentioned in the WILL create any legal problem?



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 4 Replies

Kevin Moses Paul   18 February 2022

As per your concern, let me inform that after the death of the person, only the Last Will executed by the testator shall be effective.
Basically, the process of changing a mistake in a Will especially, after the death of the testator is generally more complex and expensive to rectify.
However, it can be done via any of the ways namely, ▪️variation; ▪️rectification and ▪️construction.

Generally, if the error is only identified after the testator has died, it may still be possible to rectify the error if the will, as executed, fails to carry out the testator's intention due to either:
(a) a clerical error, and
(b) a failure to understand the testator's instructions.

The application should be made within six months of taking out a grant of representation, s20 Administration of Justice Act 1982. If an application is not made within this initial deadline, it may be possible to pursue a claim, but the applicant must seek the permission of the court to do so out of time.

It should be noted that rectification is a discretionary remedy, and the court will only exercise its discretion so as to give effect to the intentions of the testator.

In determining whether a will should be rectified, the court should therefore consider:
▪️What the testator's intentions were, in relation to the disposition that is the subject of the rectification.
▪️Whether the will, as drafted, fails to carry out those intentions.
▪️Whether the will is expressed as it is due to either a clerical error, or a failure on the part of the drafts person to understand those instructions.

Hope It Helps!

Regards,
Kevin M. Paul
1 Like

shyam lal   18 February 2022

well explained Mr.Kevin Paul. Thanks. I repeat as a layman kindly explain the simple way to rectify the Name as pointed in the said Query.

Sharmishta P Raj (nil)     18 February 2022

Only the last Will executed by the testator, a person who has made a will, shall be practical after the person's death. The process of changing a mistake in a Will, particularly after the testator's death, is generally a costly affair and a complicated process. However, the error can be corrected at the time of filing the affidavit or petition by the concerned lawyer. The same can be done by writing "Sudhir Sharma, also known as Sudhir Kumar Sharma" in the affidavit or petition.
To answer your question specifically, the difference in name mentioned in the WILL should not pose a significant legal problem if brought to the courts' attention through a procedural method.
I hope I answered your query sufficiently in layman terms.

1 Like

shyam lal   18 February 2022

Thanks Sharmishta.further I would like to know as I wish to sell my share of immovable property as per the share mentioned in the WILL

where in my name Mentioned as Sudhir Sharma and not Sudhir Kumar Sharma.Query would the Registrar while registration have any objection to name being different. Where as at that moment I can produce my Passport /Aadharcard/Voter ID/Pancard/Bank passbook/IOC gass connection papers All documents read & spell my name as Sudhir Kumar Sharma..Still do I have go to Court ?


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