It is possible to challenge the validity of a Will on the ground that it does not fulfil the deceased’s intentions. Applications to rectify a Will are made under section 20 of the Administration of Justice Act 1982.
A Will can only be rectified if there has been a clerical error, or the drafter of the Will failed to understand the client’s intentions at the time the Will was made.
Clerical error
Clerical Errors refer to accidental errors made on the part of the Will drafter. For example, the drafter may have included something in the Will the testator did not want or may have missed out on something that the testator wanted to be included. Administrative errors, such as mistakes made by the Will typist, may also constitute a clerical error. Clerical errors are interpreted broadly by the Court but will not extend to any errors of law.
Failure to understand instructions
Making a claim for rectification on the ground that the Will drafter failed to understand the instructions and/or intentions of the testator is more restricted than that of clerical error rectification claims and as a result, has limited application. The Court will need to know what the instructions/intentions of the testator were before being able to establish whether or not the Will does not meet these instructions and make the appropriate rectification.
This ground, again, does not extend to the Will drafter’s errors in the application or understanding of the law.
The Court is hesitant to permit claims where there is limited evidence of clerical errors or of a failure to understand instructions. Therefore, there must be clear evidence to support any claims before being made.
Claims for rectification must be made within 6 months of the date of the grant of representation. Applications can be made to the Court to permit the claim outside of this timeframe.
In many cases, those seeking to make claims for rectification, often in the alternative can make claims in negligence. Making a negligence claim will extend to any errors of law or misapplication thereof by the Will drafter.
How can Nelsons help
Amrik Basra is a Trainee Solicitor in our Private Litigation team.
At Nelsons, our team specialises in these types of disputes and includes members of The Association of Contentious Trust and Probate Specialists (ACTAPS). The team is also recommended by the independently researched publication, The Legal 500, as one of the top teams of specialists in the country.
If you have concerns about the validity of a Will, please contact Amrik or a member of our expert Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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