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This Will Is Wrong – Rectification

Reasons to choose Wilson Browne

If there is a mistake in a Will then, in certain circumstances, a Will can be rectified. Those circumstances are strictly limited though and set out in Section 20 Administration of Justice Act 1982.

A Will can be rectified if a Court is satisfied that it fails to carry out the testator’s intentions because of

  1. Clerical error; or
  2. A failure to understand the testator’s instructions

Any application for rectification of a Will must be considered on its own merit – no two cases will be the same.

An application for rectification of a Will cannot be used to re-write the Will to reflect changed circumstances or bequests a family wish the testator had made.

On rectification the Court are obliged to consider three questions:-

  1. What were the testator’s intentions with regard to the dispositions in respect of which rectification is sought?
  2. Is the Will expressed so that it fails to carry out those intentions?
  3. Is the Will written in the way it is as a result of either (a) a clerical error or (b) a failure on the part of someone to whom the testator has given instructions for his Will to understand those instructions?

The Court will need detailed evidence of what the testator’s intentions were when they gave instructions for their Will and how it has come to be that the signed document does not reflect those.

Not all applications for rectification will be successful though. Consider the unfortunate case of Marley v Rawlings in 2011 where the husband and wife accidentally signed each other’s Wills.  In that case the Court found that both Wills were invalid as they did not comply with the requirements of the Wills Act 1837.

Where there is a problem with a Will a claim might be considered against the solicitor who drafted it for professional negligence. In such a case an application for rectification may be made as a means of mitigating any loss.

For more information on rectifying a Will or making a claim for professional negligence, contact the expert teams at Wilson Browne Solicitors.

Neelam Maher

Posted:

Neelam Maher

Partner

Neelam is a Partner in the Private Client team heading up our Kettering office.