Drafting a will is a complex process, and sometimes mistakes can be made. This can lead to parts of a will, or even the whole will, being declared invalid and the estate passing under the intestacy rules. These rules can lead to unwanted beneficiaries and even increased tax liabilities. Fortunately in some cases the will can be rectified, ensuring the estate is dealt with in line with the testator’s (i.e. the person making the will) wishes.
Rectification of a will is only available in situations where a will does not carry out the testator’s wishes for one of two reasons:
- There is a clerical error
- The person writing the will has failed to understand the testator’s wishes.
The courts have held errors ranging from simple typographic errors to a married couple signing the other spouse’s will, rather than their own, as falling under the general heading of clerical errors. In addition mistakes can be due to clerical errors even if the testator has written the will themselves.
By contrast, ground b) requires that someone other than the testator has written the will. This can include a solicitor or other professional instructed to prepare a will, a friend or relative writing the will to help the testator, or a secretary taking dictation. Convincing evidence of the testator’s instructions will be required.
Once grounds for rectification have been established the error can be corrected by showing that the testator did not know and approve of the passage, or by taking into account the rest of the will and making inferences based on this.
The Courts will not grant probate when the testator does not know and approve of what it says. It is entirely possible for a testator to know and approve of one part of a will but not another. Where a mistake is made in a will the testator will only be bound by it if they have been specifically made aware of it. If not, the court will not admit that part to probate if this would make what remains closer to the testator’s wishes.
Alternatively, the Court can make inferences based on the whole of the will, and possibly extrinsic evidence. In this situation the Court is endeavouring to put the words used in proper context, rather than make alterations. Accordingly, when asking the Court to construe a word as a different word, much stronger evidence is required than when resolving an ambiguity between different meanings of the same word.
When bringing a claim for rectification, any applications be made within 6 months of probate being granted. The importance of taking legal advice as soon as possible cannot be understated.