A mistake in a will can be costly. Where there has been an error made in the preparation of a will, there may be various claims available, either to the executors of the estate or to the beneficiaries. B P Collins’ contentious probate team explores in more detail.
Rectification
Rectification is an application made to the court under the Administration of Justice Act 1982. It is only applicable where there is a mistake which occurs as a result of a clerical error or the professional drafting the will has failed to understand the testator’s instructions. The errors involved in a rectification claim are usually minor, such as incorrectly spelt names or transposed numbers.
Failure to understand instructions is not the same as the professional misunderstanding the legal or tax position. In those cases, your remedy would be in negligence.
Claims for rectification can only be used to give effect to the testator’s instructions, not to change their instructions. For example:
- Client A gives their solicitor a list of their five grandchildren and says they want each grandchild to receive £5,000 from their estate. When drafting the will, the solicitor includes one grandchild twice to the exclusion of another. A claim for rectification would likely succeed and replace the duplicated name with the missing name.
- Client B also wants their grandchildren to receive £5,000 each from their estate. They have five grandchildren but provide their solicitor with a list of only four names which the solicitor inserts into their will. After client B has died, their executors believe that they probably meant to include all five grandchildren. Unfortunately, in this situation, an application for rectification is unlikely to assist. There has been no error from the solicitor and the client’s instructions were to include the grandchildren named in their list. To amend the will to add another grandchild would be a change to their instructions.
Construction
Claims for construction occur where a will has been improperly drafted, resulting in the meaning of one or more of the clauses being ambiguous. The court may intervene to interpret the meaning of the clause and direct the executors of the will as to how the estate should be administered.
If you believe that a will has been improperly drafted or is ambiguous, our expert contentious trusts and probate team can advise you in relation to your prospective claims or applications.
If you require advice in relation to a mistake in a will, please contact the contentious probate lawyers at enquiries@bpcollins.co.uk or on 01753 889995.
