Whilst we like to think Solicitors never mistakes, there are of course instances where mistakes do happen. These mistakes have potential to leave a client with a decision or impact they never intended. In most cases, this will be rectified as soon as the mistake comes to light. However, what happens when the mistake was in respect of a client’s Will who is now deceased and the Will is to be followed? This was what happened in the recent case of Brett v Hammond and others when an admin error when drafting a Codicil gave rise to a partial intestacy.
Brett v Hammond
Case summary
The Deceased in this case made a particularly complex Will by dividing his residuary estate into 52 parts. The Deceased later made a Codicil amending his residuary beneficiaries which, on the face of it, left eight parts unaccounted for. This was not noted until the Deceased’s death when it was picked up by the Executor.
The Executor reviewed the documents related to the Will and those leading to the codicil and found it clear that the Deceased intended to dispose of all parts despite this not being reflected in the Codicil. The Executor proceeded to make an application to Court for the Will to be rectified.
When considering the issue, the Court noted the assumption that a Testator making a Will seeks to distribute his whole estate and avoid partial intestacy. In this particular case, they also noted that the Solicitor preparing the Codicil failed to properly consider the existing Will and it was clear he was unaware this Codicil would create a partial intestacy. This was therefore deemed to be an admin error and the Court therefore agreed to rectify the Will in line with the Deceased’s clear intentions.
Comment
This decision confirms that where there is a clear mistake in a Solicitor’s drafting, the Court is willing to rectify this, providing the Deceased’s wishes were clear. Alternatively, the Executor could have sought a Deed of Variation whereby the Beneficiaries agree to amend the Will, however this becomes very much dependent on the Beneficiaries involved.
How Nelsons can help
Stuart Parris is a Trainee Solicitor at Nelsons.
If you are acting as an Executor and feel the Deceased’s Will creates a partial intestacy, please contact a member of our expert Inheritance Disputes team in Derby, Leicester or Nottingham who will be able to assist. Please call 0800 024 1976 or contact us via our online form.