Correcting a mistake in a will: if there is a mistake in a will then legal steps may be available to correct the position.
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 their will. This 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.
Arguments may also be made 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.
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 from 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 an error in a will and would like to know:
a) whether the mistake in a will can be corrected or rectified, and if not;
b) whether you can bring a negligence claim for compensation for your losses
then call our free legal helpline on 0808 139 1606 or send an email to us at [email protected]