Can a mistake in a will be corrected? We look at the limited circumstances in which errors can be resolved
A mistake in a will relating to ‘knowledge and approval’
You may be able to establish that the maker of the will did not ‘know and approve’ the contents of the will. For a will to be valid the testator (the person making the will) must have knowledge and approval of the contents of their will. This legal principle can be used to rectify a will where, for instance, a mere clerical error has resulted in the will not reflecting the testator’s wishes and intentions.
A mistake in a will based on construction
Arguments may also be raised about how the wording of a will is construed and the meaning that should be applied to the words used. A Court may therefore step in to correct a mistake based on inferences taken from the will as a whole. It can also take extrinsic evidence into consideration where there is ambiguity or lack of meaning.
Mistakes in wills and rectification
The court has a statutory power to rectify a will where it fails to carry out the testator’s intentions due to a clerical error or a failure of the will writer to understand the testator’s wishes.
It can sometimes be difficult to establish what the testator’s intentions were. If a solicitor was involved in preparing the will then their evidence is likely to be key and the solicitor’s will preparation file could be crucial.
Mistakes take various forms. A common error is a mistake of omission, where a crucial word (or words) have been inadvertently left out. Other errors include a failure by the person drafting the will to appreciate the impact of a provision and the unintended consequences that will result.
Clerical errors can not only be made by solicitors or other professional will writers, but by the testator themselves where they are preparing their own will.
If rectification is going to be applied for it is important to avoid delay as strict time limits apply.
Making a negligence claim
If a mistake in a will cannot be corrected or rectified then serious financial consequences may follow. Where a beneficiary loses part or all of their intended inheritance as a result of a mistake their only legal recourse may be to make a negligence claim against the solicitor who prepared the will.
For instance, rectification will not be available where a professional will writer understands the testator’s instructions well enough, but simply does not understand the law and the legal effect of the words used in the will. Where a will writer drafts a will in such a way that it gives the wrong effect to what was intended then the disappointed beneficiary who loses out may wish to seek compensation for their losses by making a claim against the will writer.
How we can help
We have a team of specialist contentious probate lawyers who are experienced in dealing with will disputes and represent clients nationwide.
So, if you have lost out due to a mistake in a will and would like further information about:
a) Can a mistake in a will be corrected or rectified? or
b) Can you can bring a negligence claim for compensation if the mistake cannot be corrected?
then call our free legal helpline on 0333 888 0404 or send an email to us at [email protected]
