It is sometimes the case that a Will does not accurately reflect the wishes of the person who made it, who is known as the testator. If this is because of a mistake in the drafting of the Will, then anyone with a direct financial interest in the deceased’s estate can ask the court to rectify the error through a claim for will rectification.
Errors in drafting wills can lead to significant upset and familial discord if not handled sensitively. This guide is intended to provide clarity so that conversations about will rectification can take place in an informed and balanced manner. We look at when mistakes in Wills might arise and how they are handled after someone has died.
Summary
- Issues with interpretations of Wills
- Interpretation rules
- What errors can lead Wills to require rectifying?
- How to rectify a Will
Issues with Interpretations of Wills
Wills may be ambiguous or unclearly drafted, particularly if people have drawn them up themselves. Ambiguity can apply to beneficiaries, for example, assets left to ‘my children’, or to assets, such as leaving ‘my house’ to someone, when at the time of death, the testator owned more than one house.
There may also be clauses that contradict each other, such as leaving percentages of the estate that add up to more than 100%.
Interpretation Rules
Construction of a Will is when the court is asked to rule on ambiguous, contradictory or vague clauses in a Will. The judge will use the interpretation rules as set out in the case of Marley v Rawlings [2014] UKSC 2, [2015].
These state that the court should look for the intention of the party or parties by identifying the meaning of the relevant words, considering their ‘natural and ordinary meaning’, the ‘overall purpose’ and ‘any other provisions of the document’, as well as any facts ‘known or assumed by the parties’ at the time of writing, and ‘common sense’. The interpretation must ignore any subjective evidence of the intentions of any party.
Further instructions are given in Section 21 of the Administration of Justice Act 1982, which states that evidence may be admitted:
“(a) in so far as any part of a Will is meaningless;
(b) in so far as the language used in any part of it is ambiguous on the face of it;
(c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.
(2) In so far as this section applies to a Will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation.”
This means that where a case is brought, the court will look at issues such as statements from those close to the testator, the solicitor’s file made when the Will was written and other relevant information.
What Errors Can Lead Wills to Require Rectifying?
Errors made in Wills include:
- Including gifts of percentages of the estate that do not add up to 100%
- Typing errors in names or gifts
- Ambiguities, such as dividing an estate into three, but naming four beneficiaries
- Printing off an old copy of a Will to be signed, instead of the new, amended version
- A couple mistakenly signing each other’s Wills instead of their own
- A solicitor failing to correctly understand the testator’s wishes when drafting the Will
How to Rectify a Will
If you are unsure whether your Will is affected by an error, our wills and probate solicitors can advise on the best way to proceed. If the testator is still alive, they should arrange for a correct Will to be drafted and sign this. If the alterations are only minor, it may be possible to make a codicil to amend the will instead, which is an additional document that is kept with a Will and which outlines a small change.
It is more complicated if the testator has died, and an application may need to be made to the court asking for an order rectifying the Will.
In some cases, everyone involved may be in agreement with the changes, and in that case, a deed of variation can be drafted.
Support with Correcting or Interpreting Wills
If you are concerned that a Will is ambiguous or contains errors, it is helpful to speak to a solicitor as soon as possible. Ideally, if an application to rectify the Will is made, it should be made early on, to avoid the deadline and make it easier to put together evidence while issues are fresh in people’s minds.
If you wish to apply to rectify a Will, or have any other considerations for contentious probate, we will do all we can to assist.
To speak to one of our expert solicitors, ring us on 0300 303 2071, email us at info@witansolicitors.co.ukor fill in our contact form, and we will talk through your situation with you and discuss how we can assist.
FAQs
If There Is an Error in the Will, Can I Fix It?
If the person who made the Will is still alive, they should make a new Will.
If they are not, then the beneficiaries can agree to changes by signing a deed of variation. If everyone does not agree, then it will be necessary to ask the court to make an order setting out how the Will should be interpreted.
What Happens If a Claim for Rectification Succeeds?
The court will make an order that legally corrects the Will so that it reflects what the deceased wanted to happen. This amended version is the one that the executors will use when dealing with the estate administration.
Beneficiaries will be entitled to receive whatever they have been left in this amended version of the Will.
Is There a Time Limit for Making a Claim?
An application to rectify a Will should be filed at court within six months of the date on which the Grant of Probate was issued.
If the deadline is missed, it may still be possible to apply out of time, but the applicant will need to provide a reason for the delay. Rectification claims run alongside other time limits to contest a will, so it is worth checking all relevant deadlines with a solicitor at the same time.
