Mistakes are an unfortunate fact of life. Often mistakes are the result of technical issues or simple human error. Some mistakes have much greater consequences than others.
Your will is possibly one of the most important documents you may complete in your lifetime (although somewhat ironically, its importance doesn’t come into play until after your death). So, what happens when mistakes are made in the preparation of a will? B P Collins’ contentious probate team examines the consequences.
Homemade vs professionally drafted wills
There are many reasons to have your will professionally drafted by a solicitor, including receiving estate planning or inheritance tax advice and advice on potential claims against your estate. Dealing with mistakes is one of the key reasons to use a solicitor to prepare your will, because:
- Mistakes are less likely to occur – wills are often complex documents and easy to get wrong. Solicitors are required to be professionally trained and to keep their knowledge up to date with continuing professional development. There are a number of matters which need to be considered when drafting a will which are second nature for most solicitors but may not be obvious to you if you prepared your will at home. For example, we have seen a homemade will which had given the entire estate away free from inheritance tax. This would have been lovely had it worked, but unfortunately you cannot get that one past HMRC. Rather than a tax saving, all that clause achieved was a dispute between the beneficiaries as to who should pay the tax and a big, expensive headache for the executors involved.
- Solicitors are insured – when mistakes do occur, solicitors are required to have professional indemnity insurance which covers claims for negligence. If a solicitor has made a negligent mistake with your will that has caused a financial loss, their insurance will cover claims for that loss. Further, solicitors are required to have ‘run off insurance’ which means that even if the firm you used goes out of business, there is still coverage for claims. It is also often the case that firms are taken over rather than disappearing entirely, meaning that another firm has taken over responsibility for their files and any issues which may arise. This is in contrast to non-solicitor “will writers” who (even if regulated) are not required to have any insurance, so there may be no one to pursue a claim against if the will was drafted a long time before the mistake has been discovered. Similarly, if you have drafted your own will and there is a mistake, there is no way of your estate or its beneficiaries being compensated.
Claims for negligence
Professionals have a duty of care to their clients. This means that they are required to perform their duties with reasonable care and skill and to the standard expected of a reasonably competent professional.
There are a number of reasons why a negligence claim may arise in respect of will, for example:
- The professional failed to ensure that the will was properly signed, rendering it defective or invalid
- The professional failed to prepare the will in a way which reflects the testator’s wishes or did not follow their instructions
- The professional failed to advise the testator to sever the tenancy on a property which the testator believed was being disposed of by their will, resulting in the property being passed to the joint owner rather than the beneficiary under the will
- The professional gave incorrect legal or tax advice
- The professional was instructed to prepare an urgent will for someone with limited life expectancy (a ‘death bed will’) and unduly delayed, resulting in the testator having died before the will could be executed.
Claims for negligence usually need to be brought within six years of the negligent act occurring or three years from the date the negligence was discovered.
Typically, solicitors only have a duty of care to their own client. However, in the case of wills and estates, the solicitors also have an obligation to the beneficiaries. Therefore, if a mistake in a will results in the beneficiary not receiving the intended inheritance (as with the example of the failure to sever the tenancy of a property above), the compensation may be the value of the ‘missing’ inheritance.
Can mistakes be fixed?
Sometimes mistakes in wills can be rectified rather than – or in addition to – a claim being pursued in negligence.
Whether a mistake can be fixed depends on what the mistake is and how it occurred. It is also relevant when the mistake is discovered.
Mistakes discovered pre-death
If you discover a mistake in your will during your lifetime and assuming you have testamentary capacity, the fix is simple: make a new will or execute a codicil.
A codicil is an addition to your will. It makes changes to your will and ‘republishes’ it at the date you execute the codicil. Codicils may be appropriate if the change you are making is simple, such as changing your executors. Commonly people believe codicils are more cost effective than making a new will. However, depending on the changes required, there may be little difference in costs. In theory you can make any number of codicils to change your will, but this may make your will confusing and increases the risk that there are inconsistencies in the documents which cause issues in the administration of your estate.
A new will (usually) revokes your previous will and sets out your new instructions. It is advisable to review your will regularly and make sure it still reflects your instructions. At the same time as reviewing your will, you can check there are no mistakes in it.
If a mistake is discovered in the will of someone who has lost testamentary capacity, it may be possible to apply to the Court of Protection for a statutory will to rectify the mistake. The Court of Protection will need to be convinced that the execution of the statutory will is in the testator’s best interests. This will usually require evidence of what the testator was intending to do with their will and the fact that the failure to ensure their wishes were set out in the will was a mistake.
Mistakes discovered post-death
Once the testator has died, the opportunity for them to prepare a new will is lost. However, there may still be some options such as variation, or claims for rectification or construction.
Variation
The interested parties to a will can, generally, agree to vary the terms of the will to give effect to the testator’s wishes. For example, if the testator wanted all of their grandchildren to benefit equally but the solicitor missed one name, the other beneficiaries could agree to include them and divide the inheritance between them all. There are some factors which need to be considered with variation:
- If there are minor or unborn beneficiaries, or beneficiaries who lack legal capacity, the court will need to approve the variation. The court will need to be convinced that any variation is in the interest of the beneficiary. There can be good reasons why a variation might be in the interests of a beneficiary, even if the variation on the face of it reduces that beneficiary’s entitlement.
- Varying the will can vary the inheritance tax payable and may result in other tax consequences.
- Beneficiaries who are in receipt of means-tested benefits or are varying to avoid their share being taken into account when assessing their eligibility for local authority funded care need to be very careful that they are not entering into a ‘deliberate deprivation of assets’.
For these reasons it is always advisable to only enter into a variation with the benefit of specialist legal advice.
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. Using the example above, if the testator gave a list of the grandchildren they wanted to benefit and they (rather than the solicitor) missed one off, that would likely not be rectifiable. This is because the professional was not instructed to include that grandchild, and their exclusion was not a clerical error. Conversely if the testator gave a complete list and the will writer included one grandchild twice, missing another off, that may be rectifiable.
Construction
Claims for construction occur where a will has been improperly drafted or drafted in a confusing way, 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.
Where claims for rectification or construction are required as a result of mistakes made by professionals, there may also be a claim for negligence to recover the costs of fixing the mistakes.
Summary
Some mistakes in wills can be rectified. It is usually easier and much more cost effective if the mistake is discovered during the testator’s lifetime and during a time where they have testamentary capacity to make a new will or codicil. For that reason, it is advisable to regularly review your will and ensure that it accords with your current wishes.
However, sometimes that is not an option, and our contentious probate team can assist with negotiating post-death variations to wills or bringing claims for rectification, construction, or in negligence.
If you have noticed an error in a will or you require any advice regarding claims against an estate, please contact our contentious probate lawyers at enquiries@bpcollins.co.uk or 01753 889995.
