- February 13, 2019
- By Tom Dickinson
- 0 comments
I think there is a mistake in my loved one’s Will, is there anything I can do?
Occasionally, mistakes made in creating (drafting) a Will are only discovered after the death of the person creating the Will (the testator).
If you suspect that a Will contains a mistake and does not carry out the intentions of the testator, you may wish to consider an application to rectify the Will under s20 of the Administration of Justice Act 1982. This section gives the Court the power to rectify (amend) a Will that fails to carry out a testator’s intentions, if this mistake has been caused by:
- a clerical error; or
- a failure to understand instructions.
Such an application may be appropriate if beneficiaries cannot agree to unanimously vary the Will themselves.
It can also be a practical and cost-effective alternative to challenging the validly of a Will and prevent claims brought as a result of the error.
The effect of a successful application is that the Court will rectify (amend) the words in the Will to carry out the true intentions of the testator.
An application must be brought within 6 months of the date of the Grant, or Court permission is required. If you make an application, you must prove:
- what the testator’s intentions were;
- that the Will is expressed in such a way that it fails to carry out those intentions; and
- that the Will is expressed this way as a result of a clerical error or a failure on the part of the Will drafter to understand the testator’s instructions.
The Court is very reluctant to interfere without convincing evidence of the testator’s true intentions, particularly if a Will has been professionally drafted by a solicitor. You are therefore very unlikely to succeed in your application without documents, from the relevant time, proving the testator’s true intentions. If this evidence exists, it will usually be found in the file of the professional who drafted the Will. This file may contain a letter from the testator with their instructions or an attendance note from a meeting.
As a word of caution, even if you can prove that the Will fails to express the testator’s intentions – your application will not necessarily succeed. Your application will fail if you cannot prove that the mistake was caused by a “clerical error” or “failure to understand instructions”.
The good news is that “clerical error” has a wide meaning. In the past the Court has held that “slips” in the drafting by a testator or their advisor, failing to insert a clause from an earlier Will and even signing the wrong Will are “clerical errors”. However, your application will fail if the person drafting the will mistakenly intended the legal effect of the words. In those circumstances, your only recourse may be a negligence claim against the professional who drafted the Will.
Failure to understand has a more limited scope. It will only apply where there is clear evidence of the testator’s instructions and that the Will fails to carry out those instructions.
If you have concerns about the Will of a loved one who has passed away, please do not hesitate to contact a member of our Contentious Probate team.
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