If a will fails to carry out the wishes of the individual who made the will then it may be possible for an application to be made to court for the will to be rectified.
Grounds for rectifying a will
There are limited circumstances when the court will rectify the terms of a will:
- if the will is incorrect due to a clerical error
- there was a failure by the person who prepared the will (e.g. a solicitor) to understand the instructions of that individual
A clerical error would include typographical errors, writing something which was not intended or failing to include something which was intended to be inserted in the will. This could include the insertion or omission of a word, figure or name. In a recent case, a couple made wills that mirrored each other but they had accidentally signed the other’s person’s will. This error was not spotted until the death of the second person so by that time it was too late for the individuals to remedy the situation themselves. The Court ruled that mistakenly signing somebody else’s will amounted to a clerical error and rectified it to make a valid will.
Not every error will be capable of being rectified by the court and so the will may end up being invalid or the true wishes of the deceased may not be followed. Alternatively, even if the will is rectified, the parties may end up incurring significant costs in applying to the court to sort out the mistake, especially if an application was contested by other beneficiaries. In such situations, if the will was prepared by a solicitor or will writer, then there may be a claim for professional negligence against them.
What is needed to bring a claim for rectification?
To bring a claim for rectification it is essential to try and discover what the intentions were of the individual who made the will. If the will was made by professional advisors then they may have kept notes setting out the individual’s instructions and it may be possible from these to identify the individual’s intentions. Other documents, such as previous wills may also be used as evidence.
Is there a time limit for bringing a rectification claim?
There is a short time limit for bringing a claim for rectification of a will as it must be brought within 6 months from the date of the Grant of Probate/Letters of Administration. Therefore anyone who wants to bring such a claim must act promptly.
It is important that if a rectification claim is being considered, that specialist legal advice is taken promptly, not only to ensure that any claim is brought within the time limit but also to ensure that steps can be taken to safeguard any evidence that may otherwise end up being disposed. We have a great deal of experience in making such applications to the court and will be happy to assist.