What Is The Falsa Demonstratio Principle?

The term falsa demonstratio (non nocet cum de corpore constat) is a legal phrase that means a false description doesn’t void a document, as long as the intent is clear.

It is often used to correct something that is an obvious mistake.

In the context of a will, the falsa demonstratio Principle may be applied in the event that a testator (the person writing the will) described an asset adequately in their will, but in some way, made a mistake in the description. This could be in the form of a minor typo, grammar error or misspelling, for example.  With the Principle applied, the wrong description of the item in the will, will not necessarily render the gift void.

The principle of falsa demonstratio non nocet considers the language of a will in combination with admissible extrinsic evidence to determine the intent behind the words on the legal document.  The court can then come to the conclusion as to what exactly the testator intended to pass on to the beneficiary and ensure a wrong description in the will does not prevent it from taking effect.  The principle may be applied in whatever part of the description the error occurred.

Typically, all terms of a description will be given the same consideration, whether they are general or specific.  In some cases, a testator will use different terms to describe the same asset. One of the terms used may describe the property with certainty, for example, a description of the meters and bounds, but the rest of the information may contain an incorrect lot number. In this case, the untrue portion will be rejected under the falsa demonstratio principle.

In Wong v Lee (49 ETR 121 (BCCA, 1993) the court used the following words:

“The principle of falsa demonstratio non nocet means that if, on considering the language of a will with the aid of any admissible extrinsic evidence, the court comes to the conclusion that the testator intended to pass something and can determine what that something is, then the fact that the testator gave it a wrong description in his will does not prevent the will taking effect in regard to the subject matter intended by the testator. The principle may be applied in whatever part of the description the error occurred ..

“Thus, if T makes a specific gift of certain stock, and T at the date of his will possessed no such stock but possessed other stock which the court decides was meant, the latter stock passes under the gift despite the false description.”

Writing a Will Clearly to Avoid Falsa Demonstratio

In order to avoid any ambiguity in your will, there are certain things that you should consider.  The following are some general steps to writing an effective will.

  • Look at Examples: There are a number of example wills that are readily available online. Take some time to look through them, paying attention to their structure and the way they are written for some insight into how to best write yours.
  • Make A List of Assets: Take some time to consider all of your assets including financial assets and physical belongings.  Make a comprehensive list of these, making sure you include anything that is of sentimental value to you or your family, even if it is not particularly valuable.
  • Consider Who You Want to Include: It’s important to work out the family members, close friends, or even organisations or associations that you want to be included in your will before you start distributing assets. This will help you to ensure you don’t miss anyone out of your final document.
  • Consider Anyone to Exclude: If there is someone who is close to you that you don’t want to include in your will, explain clearly why you’ve chosen to exclude them. This can avoid legal battles from disgruntled relatives who expect to be provided for.
  • Distribute Your Assets: Decide who gets what and outline this clearly. Ensure descriptions of assets are detailed, with the exact percentage that each person should get, including their name and relationship to you.
  • Add Any Further Instructions: If you have other wishes on top of how your assets should be distributed, tis should be outlined. This can include who will get guardianship of your children, who will see that the terms of your will are followed, and what happens to your body after you die.
  • Update as necessary. There are many reasons you may want to update your will. An increase in assets or a major life event such as, getting married, getting divorced, having a baby or having a death in the family may alter how you want your assets to be distributed.
  • Seek Legal Advice: A lawyer can help look over your will to ensure it is clear and accurate.  Depending on your circumstances you may engage a lawyer to write the whole thing. In which case, mistakes will be minimised and you can ensure the details in your will are unambiguous.

Without an accurate will, you risk leaving your family open to an estate dispute. For more information, contact the expert Estate Lawyers at Hentys.

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