Where a will does not reflect a testator’s intentions, it may be possible to bring a claim for rectification under section 20 of the Administration of Justice Act 1982. To rectify a will, the Court must be satisfied that the will does not carry out the testator’s wishes due to a clerical error, or a failure to understand the testator’s instructions.
Firstly, the Court will consider what the testator’s intentions were regarding the provisions in their will. For example, the Court will look for evidence within a testator’s will file which clearly outlines the provisions that they intended to make. Once satisfied of the testator’s intentions, the Court will consider whether the will carries out these intentions as drafted.
Provided that the will does not carry out the testator’s wishes, the Court must be satisfied, on the balance of probabilities, that the error was either clerical, or due to a failure of the will drafter to understand the testator’s instructions.
Clerical errors are inadvertent mistakes which are made when a will is drafted. This may include spelling mistakes, or where a will drafter fails to turn their mind to the implications of adding a clause within a will which is inconsistent with the testator’s intentions. Clerical errors should be given a wide interpretation, which could include mistakes made when preparing, filing and sending a will.
The failure of a will drafter to understand a testator’s wishes may include, for example, where a testator instructed the will drafter to gift a property to a specific person, but this was misunderstood, and the property was gifted to another individual. Importantly, where a will drafter understood the testator’s instructions but drafted the will in a way which fails to have the correct legal effect, this ground does not apply.
Claims for rectification can be complex and should be brought within 6 months of the grant of probate or letters of administration being extracted, although the Court can grant permission to bring claims out of time in certain circumstances. Therefore, if you are concerned that a loved one’s will does not reflect their intentions and needs to be rectified, it is important to seek legal advice promptly.
Ellisons has a team of dedicated Contentious Trusts and Probate Specialists who can assist with rectification claims.