The issue of Will rectifications has made waves in the news again this week, with a report in the Daily Mail on a claim issued by Steven Pead in the High Court.
Case Summary
Mr Pead, a mechanic in his mid-60s, was told by his late stepfather that he would be left a substantial sum in his Will. Mr Pead’s stepfather’s estate was worth around £1 million.
However, the Will prepared by Mr Pead’s stepfather’s solicitors appears to contain a drafting error. Several fixed sums have been left to charities, including MacMillan Cancer Support, Prostate Cancer UK, and Cancer Research UK, but the clause in the Will that deals with the estate residue (worth £495,000) stated that the “beneficiaries” would inherit the sum. This would mean that the majority of it would go to charities instead of Mr Pead.
Mr Pead is arguing that the Will can and should be rectified, because his stepfather intended for Mr Pead to inherit the estate residue, and for the charities to receive fixed sums only. The charities, however, are defending the claim. The Daily Mail article suggests that the arguments centre around what Mr Pead did intend to happen and whether the solicitors’ file clearly reflected this. Judgment is due to be given shortly.
The law
Under section 20 of the Administration of Justice Act 1982, a Court may rectify a Will if it is “satisfied” that the Will is expressed in such a way that it fails to carry out the testator’s intentions, because of either:
- A clerical error; or
- A failure by the Will drafter to understand the testator’s intentions.
A clerical error was described in Wordingham v Roll Exchange Trust Company [1992] CH 412 to be a mistake in the “process of recording the intended words of the testator and the drafting or transcription of his Will”.
Evidence that may assist the Court
If an error is fairly obvious and seen to give a totally different meaning than the one the testator intended, then this satisfies the criteria set out above. The key however for any claimant is being able to produce evidence that what the testator wanted to happen would have been achieved but for the error made by the Will drafter.
In almost all cases of this nature, the pivotal evidence is the solicitors’ or Will writer’s file. Attendance notes taken at the time of instructions being given are usually crucial. Many law firms keep very detailed notes of meetings, recording answers to questions from the testator and exploring with them the consequences of making certain gifts and how it will affect the other beneficiaries. However, this is not always the case and a lack of detailed recording can create major problems if the Will is deemed to contain an error.
Other wider evidence can be very useful including conversations that the Deceased had with others about his/her estate. That said, the claimant’s own recollections are bound to be treated with a degree of caution, given that the claimant has a financial interest in the outcome. Third-party witnesses who have no personal involvement and are not set to gain are often very helpful in such cases.
If a Will cannot be rectified due to the evidence being insufficient, other options for the claimant may include:
- A claim under the Inheritance (Provision for Family and Dependants) Act 1975 for provision from the estate;
- An estoppel claim – which may succeed if the claimant can show that clear promises of inheritance were made and the claimant relied on those promises to his/her detriment; or
- A negligence claim against the Will writer or solicitors who prepared the defective Will.
How can Nelsons help
If you have any questions regarding the subjects discussed in this article, please contact a member of our expert Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
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