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Can a Will be rectified?

At a glance

Rectification is the process of putting something right, of correcting something. Where a mistake has been made in drafting a Will, and the Testator is still alive, a new Will or Codicil may be executed so as to remedy the mistake. Things become more complicated if the mistake is only discovered after the Testator’s death.

Where the mistake is identified post death, it may be possible to bring a claim to rectify the Will under the Administration of Justice Act 1982. For Wills of testators who died before 1983, there was no such power, words could only be struck out. The 1982 Act expanded such power of rectification.  

Rectification under the 1982 Act

s20 reads that where: ‘a court is satisfied that a Will…fails to carry out the Testator’s intentions, in consequence

 (a) of a clerical error; or                                                                                                                                                  

 (b) of a failure to understand his instructions, it may order that the Will shall be rectified so as to carry out his intentions’.

The claim should be brought within six months of taking out the Grant of Representation, though the Court’s permission may be gained to bring a claim out of such time.

Such power of rectification is discretionary and, as pointed to above, will only be exercised in one of two instances and in order to affect the Testator’s intentions. Rectification must not be viewed as a panacea for a badly drafted Will, for example when a Will Drafter has failed to understand the technical implications of such language.

In determining applications, the Court must consider                                                                                                

(1) the Testator’s intentions;                                                                                                                                          

(2) whether the Will was drafted in a way that failed to carry out such intentions; and                                        

(3) whether the Will as drafted was due to a clerical error or failure of the Draftsman to understand the Testator’s instructions.

Whilst the standard of evidence required is on the balance of probability, it has been held that strong evidence will be required for an Order of Rectification. Mere speculation will not suffice.

Clerical error

This ground extends to capture instances where the Testator did not intend to include a provision or omitted to include something that had been intended. It will not, however, extend to capture instances where the Testator failed to appreciate the legal effect of words. For example, a spelling mistake would be a clerical error, as would getting the client to execute the wrong Will in the belief they were executing the correct one, on the basis that any administrative error constitutes a clerical error.

This ground will not cover instances where the Draftsman applied his mind to the legal significance of such words after properly understanding the Testator’s instructions but, through misunderstanding the law, fails to achieve the Testator’s intentions. For example, a claim for rectification was not successful where the Draftsman had given careful thought to the wording, and included charities in the class of residuary beneficiaries in the mistaken belief that desired result would be achieved. It is unclear whether rectification would be granted without careful consideration, if for instance, such wording had been part of the Draftsman’s Will precedent and included without thought.

Failure to understand

This more limited ground only applies where the Draftsman misunderstood the testator’s instructions, and has nothing to do with thinking about or knowing the legal significance of the words. 

A claim is likely to be successful where the Testator instructed the Draftsman that they wanted to leave certain property to X, and in failing to understand the testator’s intention, the Will is drawn in such a way as to leave the property to Y, and the Testator, not appreciating the mistake, executes the Will.

Rectification and Negligence claims

In cases of a professionally drafted Will, there is usually an element of negligence on the part of the Draftsman if the Will does not carry out the intentions of the Testator. Disappointed beneficiaries are able to claim for their losses, as a duty of care is owed to them.  A first step to bringing such a claim can often be a rectification claim because the disappointed beneficiaries have to show that they have mitigated their losses.

However, if the costs of a rectification claim would be disproportionate or there is no real prospect of success, the Claimant can successfully argue the step is not necessary to establishing their losses resulting from the negligence.

Alternative remedies

As with all disputes, parties are encouraged to attempt to settle before proceedings are issued or before costs become disproportionate.

Other remedies may also be considered such as a deed of variation, an application under the Variation of Trusts Act 1958, a claim under I(PFD)A 1975 or a probate claim alleging want of knowledge and approval by the testator.

This article was written by Oliver Clark – Trainee Solicitor

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