Rectifying a Will: what to consider

Mistakes happen. Even with the best will in the world, mistakes happen. Nobody is infallible and we all make mistakes every day. Even experienced professionals make mistakes occasionally. It is not possible to eliminate the incidence or possibility of mistakes but, when mistakes appear in documents such as commercial contracts or a Will, then it is possible to address them by means of a legal equitable doctrine known as ‘rectification’.

Correcting mistakes

The process of rectification means correcting mistakes that were made in a final document, such as a Will. Mistakes are caused, most commonly, by either clerical errors or a misunderstanding so that the final document does not truly reflect the intention of the parties.

In the case of a Will, mistakes can be caused when the Will is home-made or, if being drafted by a professional, the drafter has misunderstood or misinterpreted the testator’s (the person making the Will) intentions. If the testator is still alive, and has mental capacity, when the mistake is spotted, then rectification is a simple matter of the testator making a new Will or, possibly, a codicil which is a formal amending document that is annexed to the Will.

However, if an error only becomes apparent after the testator has died, or has lost mental capacity, then it becomes a more difficult matter, not least because the testator is no longer around to state what their real intentions were.

In such cases, an application to the court for rectification is required.

Application to the court for rectification

An application must be made under s20 of the Administration of Justice Act 1982 not later than six months after the date of the grant of probate. If the application is delayed beyond six months, then the application may still proceed but the applicants will have to seek the permission of the court (known as ‘leave’) in order to make the application.

Rectification of a Will is what is known as a ‘discretionary remedy’. In other words, the court is not bound to order the rectification that is being sought. It has discretion and, in deciding whether or not a Will should be rectified, the court will consider the following:

  • What the testator’s intentions actually were;
  • Whether the Will as drafted fails to carry out those intentions; and
  • Whether the Will is expressed as it is due to a clerical error or a failure on the part of the draftsman to understand the testator’s instructions properly.

What constitutes an ‘error’?

The terms ‘error’ or ‘clerical error’ have no clear, defined meaning. Some clarification can be gleaned by means of decision in recent cases.

The case of Bell .v. Georgiou (2002) provided some degree of definition to the term ‘clerical error’ as something that:

"...occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert".

The scope of the concept of ‘clerical error’ was clearly shown in the case of Marley .v. Rawlings (2014). In that case, an error on the part of the solicitor led to a husband signing a Will drafted for his wife and vice versa. It only became apparent after the husband had died. The court found that there had been a clerical error and application for rectification was successful.

Then again, in the case of Kelly .v. Jones and Others (2012) the court found that the draftsman chose wording in the mistaken belief that such words achieved the testatrix’s intention. They did not, but the court ruled that this was not a clerical error and the application for rectification failed as a result.

It is simply impossible to define exactly what type of error the court will accept as worthy of rectification, though it is likely that a simple and easily-provable typographic error may be accepted much more readily. But it is unsafe to assume that perceived mistakes or defects will always be remedied by rectification of a Will by the court.

If you are an executor or a beneficiary under a Will and you believe that there has been an error, then it is vital that you seek advice from an appropriate experienced solicitor before applying for a rectification order. Furthermore, even if there is a mistake which cannot be rectified by the court, you may need advice on taking action for professional negligence against the draftsman.

For further information and trusted legal advice regarding Will disputes, get in touch with us at Carlsons Solicitors.

Wills & ProbateNathan Wilkins