Mistakes In A Deceased’s Will

Prior to dying, a number of actions can be undertaken by an individual to get their affairs in order and make provisions for their estate to be distributed as they wish. This may also include taking advice on inheritance tax and how to distribute your estate in the best way.

After the individual has died, those who are left to deal with their estate may find that errors have been made. Where an individual has died and made a Will, it is the executors named in the Will that deal with the estate, including collecting in the assets, filing forms, and distributing the estate. In some cases, when the individual has died and their papers are reviewed, it comes to light that errors have been made during the drafting of the papers, and the Deceased’s wishes are not clear.

Common issues with Will drafting

Drafting issues are fairly common, and there are a few ways in which the executors can deal with the mistake.

The Court has the power to rectify a Will where an error is made. This is known as a rectification and is a distortionary power. Rectification is available for deaths after 31 December 1982 under section 20 of the Administration of Justice Act 982 (Act).

When an application is made to the Court for rectification, the following will be considered:

For the Court to order a rectification of a Will, strong evidence is needed to show the testator’s true intention. When considering an application under the Act, the usual civil standard of proof is applied. This being that the Court should be satisfied on the balance of probabilities that a rectifiable error occurred under one of the following grounds:

Where it is likely that an application for rectification is going to be contested, the executors should be careful to remain neutral in the litigation unless they are prepared to accept the risk of becoming personally liable for the costs of the litigation.

If an order of rectification is made, a copy of the order will be lodged at the Principal Registry of the Family Division, and a memorandum of the order will be endorsed on the grant under which the estate is administered.

If you are concerned about the drafting of a Will following the death of a Deceased person, you should seek legal advice about the drafting and the options available to you. It is important for executors to act in a way that is in the best interest of the estate and to take the appropriate steps to ensure the role is carried out correctly.

In the alternative, if you are a beneficiary under the Deceased’s estate and think there may be an issue with the drafting, you should also seek legal advice as to the options available to you and take the necessary steps to deal with the concerns.

Both sides of the dispute should seek to try and resolve the matter before making an application to the Court, where possible. In some cases, this may not be a viable option, but parties should carefully consider the options available to them before commencing legal action.