In New Jersey, the courts have applied a doctrine of probable intent to rectify a will where there was an ambiguity as to whether the mortgage and taxes of a devised house were to be paid by the estate. The remedy for scrivener's error or fraud is the creation of a constructive trust that will receive the property and distribute it according the testator's intent. Or, in the cases of scrivener fraud, the drafting lawyer or some other person has the testator sign a document that is not the testator's will. Sometimes, a will contains scrivener's errors, which are mistakes in the writing of the will which changes its meaning, such as typographical errors, such as a mistaken address, or the inadvertent omission or addition of words. When a few words do not make sense in the context of the will, the court tries to determine the testator's intent by hearing evidence for the intended meaning of the misdescription, then strikes the words to see if there are enough words to determine the testator's intent. The misdescription doctrine is a legal method in which words are struck - but not added - to see if a will can be made intelligible so that it can be validated and admitted to probate.

Since many types of flaws are common in wills, the courts have developed a few doctrines to address specific types of flaws. Many have argued that strict compliance was necessary to avoid additional litigation and other problems, but the experience in other countries, especially in Canada, Australia, and Israel, and with nonprobate transfers has demonstrated that allowing will reformation may even reduce litigation, since much of that litigation was based on minor errors in the will that could be contested to unjustly enrich contesters and attorneys. Even the smallest mistakes in a will that could not be reformed could result in a substantial liability to the attorney drafting the will. The main reasons allowing the court to reform the will is to carry out the intent of the testator, to prevent the unjust enrichment of the distributee at the expense of the intended beneficiary, and to lower or prevent malpractice liability if the error was caused by the attorney. However, courts will not usually consider what the decedent had said, but not written, while still alive, and wills not signed will rarely be considered valid, since there is always the possibility that the testator drafted the will, but then decided against signing it.

Using clear and convincing evidence, mistaken terms, scrivener errors, ambiguities, and other flaws in the will could be corrected by the courts.

These approaches have been codified in the American Law Institute's Restatement (Third) of Property: Wills and Other Donative Transfers. Hence, the courts have developed a number of approaches that allow reformation of the will so that the testator's intent can be carried out even if there are problems with the will. In courts that require strict compliance, even the smallest error or ambiguity could invalidate the entire will, frequently causing property to be distributed according to the state's intestate distribution scheme. The Wills Act formalities are strict, frequently frustrating the intent of the testator rather than fulfilling it. Modern Trend in Wills Act Formalities: Substantial Compliance and Harmless Error Doctrines › Money › Wills, Estates, and Trusts › Wills and Estates Wills Act Formalities: Modern Trend

Scrivener error definition