There is a misconception that a Will cannot be changed after a testator has died; this is not the case. Wills can be disputed and changed based on many grounds, including lack of testamentary capacity, undue influence or coercion, lack of knowledge and approval, and even forgery and fraud. We give a rundown of the possible reasons for disputing a Will on the grounds of rectification.
Some errors to a Will usually have no bearing at all to a possible dispute, such as the spelling of a beneficiary’s name. As long as they are the person who the testator truly wished to benefit, there should be no problem. Occasionally, an error does not reflect what the testator actually intended, perhaps by reason of a typographical error or perhaps a failure to understand the testator’s instruction.
Rectification can occur when disappointed beneficiaries believe that the content of a Will does not reflect the intention or wishes of the deceased. If the intention behind the Will may have been misinterpreted or the wishes of the deceased not adequately set out, an application can be made for the Will to be amended. This is known as ‘rectification’.
There is an underlying principle in law from a 1980 court decision, re: Coventry, that “… an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases …” This may result in an unusual distribution to that anticipated or expected and may leave disappointed beneficiaries with difficulties in contesting a Will.
Where a Will, whether by error, omission or poor drafting does not provide for the true intentions of the person making the will, it may be possible to bring a claim for rectification.
Section 20 of the Administration of Justice Act 1982 provides the grounds for rectifying a Will:
“If the court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence of a:
it may be ordered that the will should be rectified so as to carry out his intentions”.
In re: Segelman deceased (1996), Chadwick J set out three questions for the court on an application to rectify under Section 20:
A clerical error means an inadvertent error made, “in the process of recording the intended words of the testator and the drafting or transcription of his Will” – Wordingham v Royal Exchange Trust Co (1992). This has also been described as where a person either of his own volition or under the instructions of another intends to write something, but by inadvertence either omits to write it or writes something different. A clerical error can include a failure to follow the testator’s instructions accurately. In Wordingham v Royal Exchange Trust, the testator gave instructions to alter an existing Will by changing specific bequests, but the rest of the Will was to remain unaltered. In error, one clause was omitted from the earlier Will into the new Will and held to be a “clerical error”.
A clerical error can occur by the person drafting the Will on behalf of the testator, or by the testator themselves when drafting their own homemade Will.
In Marley v Rawlings (2014), Mr and Mrs Rawlings prepared simple mirror Wills. On the first death, each was the sole executor and beneficiary. On the second death, the sole executor and beneficiary was Mr Marley. Mr and Mrs Rawlings wrongly signed the other’s Will. The error did not come to light until the death of the second testator. Mr Marley applied for rectification which was opposed by Mr and Mrs Rawlings’ two sons, who would inherit under the intestacy rules if the Will was not valid. The net result was Mr Marley got nothing and the Estate passed by the rules of intestacy to Mr Rawlings’ children, which clearly is not what Mr and Mrs Rawlings intended. Mr Marley was unsuccessful in the High Court and Court of Appeal. Upon appeal to the Supreme Court, the appeal was allowed. The Supreme Court decided there was no reason, as a matter of principle, to rule out wholesale correction as a permissible exercise of the court’s power to rectify and that the error made by the solicitor who mixed up the two Wills was a clerical error.
If the person drafting the Will had applied their mind to the meaning and effect of the words but inadvertently achieved the wrong result due to misunderstanding the testator’s instructions, rectification could only be achieved, if, on the evidence available, the applicant could satisfy the court that:
If upon a review of the Will writers or solicitor’s file, the person drafting the Will has understood the testator’s instructions but misapplied the law and the use of words applies the wrong legal effect, section 20 will not apply and rectification cannot be achieved.
If it is established that a Will fails to carry out the testator’s instructions, the court will only grant rectification where there is convincing evidence as the testator’s instructions. The starting point will be to obtain the Will drafter’s file and a thorough review of the testator’s instructions and Will writer’s notes. The evidence of the person taking the testator’s instructions is often crucial. The standard of proof is on the balance of probabilities.
There is a 6-month time limit from the date of the grant of probate under section 20(2) in which to bring an application to rectify. Any claim brought after this period will require permission of the court, and the court will consider the reasons for the delay in seeking rectification and any prejudice caused.
If a court finds that a clerical error has occurred or the Will draftsman has failed to understand the intentions of the testator, the court will make a ruling as to the true intentions of the testator and the estate will be distributed in accordance with those true intentions.
A disappointed beneficiary who suffers a loss may be able to pursue a professional negligence action if they are unable or unsuccessful in bringing a claim for rectification. To assess the merits of an application for rectification or a professional negligence action, legal advice is likely to be a requirement.
If you think you may have a claim for rectification of a Will, or are a beneficiary or executor that might be affected, the importance of taking prompt legal advice is paramount. We have an experienced and dedicated team of specialist contested Wills solicitors based in our offices across Essex and London. We have evening and weekend appointments available for clients that find it difficult to arrange meetings during working hours.