Can a Will be rectified?

If you find out after someone dies that a mistake has been made in their Will, it may be possible to have this rectified.  We look at what happens if there is a mistake in a Will and if a Will can be rectified after someone has passed away.

It can be a shock to find out that a Will does not accurately reflect how the deceased wanted their estate distributed.  Additionally, it is equally shocking that a clerical error means that their Will is incorrect. The Administration of Justice Act 1982 allows the courts to rectify Wills in these circumstances.  Of course, it must be satisfied that the Will fails to carry out the deceased’s intentions.

Section 20 of the Administration of Justice Act 1982

Section 20 of the Administration of Justice Act 1982 provides that: If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence-

• of a clerical error; or
• of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions. An application to the court should be made within six months from the date of the Grant of Probate is issued. If it is not, an application can only be made if the court gives permission.

Clerical errors in Wills

Case law has given the term ‘clerical error’ a wide interpretation.  This covers a mistake in office work or a routine mistake as well as mistakes in the preparation and typing out of a Will.

In the case of Barrett v Hammond and others [2020], the deceased’s Will and codicil divided his residuary estate into 52 parts.  However, a subsequent codicil meant that only 44 parts were disposed of, leaving 8 parts without an heir.

The judge found that there had been no intention to leave these 8 parts of the estate intestate. He stated that the court has an ‘obligation to see that, so far as possible, the intentions of the testator are honoured’. The supporting evidence showed that the deceased intended that his estate should be divided into the right number of parts to make the gifts to those listed in the Will and codicils.

The solicitor had not appreciated that 8 parts were unaccounted for, and this amounted to a clerical error. Interpreting the phrase ‘clerical error’ widely, the judge rectified the Will.  He divided the estate into 44 parts so that no part of the estate was intestate.

A failure to understand the testator’s instructions

If the testator instructed the solicitor or other Will writer to put certain matters into the Will, but there is a failure of understanding and this is not done, the courts can be asked to make a rectification.

In some cases, there may also be a case for professional negligence.  If the solicitor or Will writer has failed to handle the case to the professional standard that a reasonable individual would expect of them.

Will disputes

Will disputes can be complex and become entrenched very quickly if not handled carefully. The first step is usually to try and resolve matters amicably. If you are concerned that a Will contains mistakes, you are advised to speak to a contentious probate solicitor to find out whether you have a case and what options are open to you.

Even if a mistake has not been made, you may be able to make an Inheritance Act claim if you were not provided for in the Will.  You can claim if you were closely related to the deceased or they were supporting you before their death.

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