Rectification Of A Will

Every so often a Will might contain an error which does not reflect what the testator actually intended. Human nature being what it is, this could simply be a typographical error or perhaps a failure to understand the testator’s instruction.

Some errors usually have no bearing at all, such as the spelling of a beneficiary’s name. As long as they are the person who the testator truly wished to benefit, there should be no problem.

Rectification of a Will – Applications

Clerical errors are a fact of life but when it comes to a Will, the ramifications can be significant and long-lasting. Where the error alters the identity of the beneficiaries, what they receive or under what circumstances, it will likely be necessary to make an application to the Court or registrar for rectification.

Such an application must be made under Section 20 of the Administration of Justice Act 1982 (Act) where the Court will consider whether the testator’s wishes were not reflected in the Will.

The Court can only rectify the Will if there was a clerical error or the Will drafter misunderstood their instructions. If the Will drafter made an error of law, no such rectification can be made but it does perhaps open up a negligence claim for disappointed beneficiaries.

The Court will want to know:

The starting point is likely to be a close examination of the Will drafter’s file because at the heart of the matter is what the testator actually intended.

This will involve a close examination of the Will drafter’s recollection of their direct discussions with the testator and to carefully examine whether the problem lies in a clerical error or whether it is a failure to understand their instructions.

There may be other documents held by the testator during their lifetime which might shed further light on their intentions and statements from family and friends may also assist the Court.

Grounds for Will rectification

If there are grounds to make a rectification claim, it must be supported by convincing evidence which will more than likely include an explanation of why those instructions were not understood or how the clerical error came into being.

But one must be careful to observe the strict time limits in rectification claims. Like claims under the Inheritance (Provision for Family and Dependants) Act 1975, rectification claims must be made within six months of the date of the Grant of Probate, unless the Court grants permission to bring proceedings out of time.

That is a tight timescale and an applicant might not even be aware of the testator’s passing, let alone the provisions of the Will or the date of the Grant, until months or perhaps years later. If that is the case, the applicant must demonstrate in addition to the merit of the claim that they acted promptly when they became aware and whether the estate has already been distributed.

Marley v Rawlings

Perhaps the most illuminating and recent example is Marley v Rawlings [2014]. This dispute would first go to a District Judge, then onto the Court of Appeal, and then all the way up to the Supreme Court and the national media. It also illustrates how a simple clerical error can have a profound effect and involved not just one deceased testator, but two.

Mr and Mrs Rawlings, like many couples, went to see a solicitor together about making their Wills.  They wished to leave everything to each other in the first instance and on the death of the survivor to Terry Marley, who was not a blood relative but who was treated like their son. On that basis, their Wills would be identical.

All fine so far. However, when they executed their Wills, the solicitor gave them each the Will intended for the other and what’s more, no one noticed. The mistake was not uncovered until after the second of them, Mr Rawlings, died. This meant that if he had not properly executed his Will (because he signed his wife’s and vice versa), he must have died intestate because there was no valid Will at his date of death.

The net result was Terry got nothing and the estate passed by the rules of intestacy to Mr Rawling’s children, clearly what neither of them intended.

One must have considerable sympathy for Terry. This was a modest estate of only £70,000 and Terry commenced proceedings seeking rectification of the Will. But he lost both at first instance and in the Court of Appeal because:

Clerical error

The Supreme Court took the opportunity to carefully examine the law surrounding the rectification of Wills in this unusual case. It could be argued a clerical error was confined to mistyping and giving someone the wrong document to sign was entirely different.

But the Supreme Court accepted ‘clerical error’ could be extended to this scenario and when Mr Rawlings signed it he did so with the unambiguous intention of it being his last Will, which was signed before two witnesses in accordance with the provisions of the Wills Act [1837].

Mistakes will continue to happen but the Court does not wish to encourage weak claims by accepting questionable evidence concerning the testator’s intentions when their Will was being prepared.

A Will can be simple or rather more complex so it’s important both the testator and the Will drafter clearly understand what they are being asked and how they respond. There must be convincing rather than fanciful evidence that something clearly went wrong.

If you think you may have a claim for rectification of a Will or are a beneficiary or executor that might be effected, the importance of taking prompt legal advice is paramount.