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If a genuine mistake has been made when a Will was written it can sometimes be possible to correct it.
It is a principle of English law that a person is at liberty to dispose of their property (their estate) in any way they please. This can often mean that “disappointed beneficiaries” do not inherit what they feel they ought to. Sometimes that leads to an inheritance (Provision for Family and Dependants Act 1975) claim, sometimes no claim can be made.
If, on the other hand, a Will does not reflect the true wishes of the testator then it may be possible for a disappointed beneficiary to bring a claim for rectification and/or professional negligence against the solicitor who drafted it.
What are the grounds for rectification of a Will?
Section 20 Administration of Justice Act 1982 sets out the grounds for seeking to rectify a Will. this provides
“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
- Clerical error
- Failure to understand his intentions
it may be ordered the the Will should be rectified so as to carry out his intentions
A “clerical error” is defined “an error made in the process of recording the intended words of the testator and the drafting or transcription of his Will” (Wordingham v Roll Exchange Trust Company ).
In some cases it is possible to correct a “clerical error” by making a application for rectification. In other cases it will be necessary to bring a professional negligence claim against a solicitor who drafted the Will.
Failure to understand
If you can show that the person who drafted the Will simply failed to understand the testator’s intentions or misunderstood them, then an application for rectification might be possible.
As claim for rectification on the basis of a failure to understand the testator’s intentions or misunderstood them, them an application for rectification might be possible.
A claim for rectification on the basis of a failure to understand the testator’s intentions will only succeed if you can show
- The testator’s actual intentions with regard to the Will or the clause in question
- That the Will does not reflect those intentions
- That the person drafting the Will misunderstood those intentions (this is different to simply drafting the Will incorrectly) resulting in the will not reflecting the testator’s actual wishes
An application to the Court for rectification will need to be supported by evidence. This will usually include a copy of the file from the solicitor who drafted the Will.
Applications for rectification should be brought within 6 months of the issue of a Grant of Probate. If there is a delay in bringing the claim, permission will need to be given by the Court for the claim to go ahead and the reasons for the delay will be considered carefully before the permission is granted.
What happens if a claim for rectification succeeds?
If a Court grants an application for rectification then the Will is treated as including the testator’s actual intentions and the Estate will be administered in accordance with those wishes as though they had been contained in the original Will.
Professional Negligence Claims
Almost always, a claim for rectification arises as a result of negligence on the part of the person who drafted the Will. Anyone who has suffered a loss as a result of the clerical error or misunderstanding of the intentions may have a claim.
Those claims will vary from simply the cost of the work to rectify the Will – because they then inherit what they should have done and their loss is limited – to the value of any share of the Estate they are now unable to inherit.
Our expert Contentious Trust and Probate and Professional Negligence Team can assist if you think that there is a claim for rectification to be made. Speak to us today.