Correcting Mistakes in a Will

Will rectification is a legal process available after a testator has died, when the will fails to carry out the testator’s intentions due to a clerical error or failure to understand their instructions. It involves applying to the court for an order to amend the wording of a will.

Rectification is distinguished from deeds of variation (under which changes are made to a valid will, often for tax purposes) or construction (asking the court to interpret ambiguous wording without changing the document).

Common Types of Mistakes in Wills

Clerical errors may include:

• typing mistakes
• incorrect names or addresses
• wrong dates
• transposed figures in monetary gifts
• omitted clauses or beneficiaries.

Errors arising from failure to understand instructions may include:

• naming the wrong beneficiary for a specific gift
• incorrect property descriptions
• wrong relationship descriptions (e.g. “nephew” instead of “cousin”)
• mathematical errors in percentage shares.

The Legal Basis for Correcting a Will

The statutory basis for rectification of a will in England and Wales is section 20 of the Administration of Justice Act 1982. There are two grounds on which a court can order rectification: (a) the will fails to carry out the testator’s intentions due to a clerical error, or (b) the will fails to carry out the testator’s intentions due to a failure to understand the testator’s instructions.

When Can a Will Be Rectified?

A claim can be made for rectification if one or both of the above grounds is satisfied. Applications must generally be made within six months of the grant of probate, though the court has discretion to extend this time limit in exceptional circumstances.

Evidence is required to demonstrate the testator’s actual intentions, which can be difficult to adduce. The burden of proof is on the person seeking rectification. Examples of evidence may include:

• draft wills
• attendance notes from meetings with solicitors
• witness statements from the will drafter or people who discussed the will with the testator
• correspondence about the will
• any written instructions to the will drafter

The Will Rectification Process

The first step in the will rectification process is identifying the error or deviation and gathering evidence of the testator’s true intentions. You should instruct specialist contentious probate solicitors at this stage, who can then assist with the application to the court.

The procedure for a will rectification court application depends on whether any interested party objects to the proposed rectification. If the application is opposed, then a claim must be filed in the Chancery Division.

If the court makes an order for rectification of the will, then the will should be revised accordingly, all interested parties informed and the corrected will lodged with the Probate Registry.

Evidence Required for Rectification Claims

The evidence needed for a successful claim depends on the type of rectification proposed. However, documentary evidence such as earlier drafts of the will showing different wording, attendance notes or file notes from the solicitor who drafted the will, emails or letters discussing the will’s contents, and any other written instructions from the testator can all be persuasive.

Witness evidence, which can include statements from the will drafter explaining what instructions they received and what they understood, testimony from family members who discussed the testator’s intentions, and evidence from accountants or financial advisors who knew the testator’s wishes will usually be necessary. Contemporaneous evidence (created at the time the will was made) often carries greater weight than later recollections set out in a witness statement.

Costs of Rectifying a Will

The costs of rectifying a will depend on the complexity of the rectification, whether the claim is contested, and the amount and complexity of evidence required.

The costs typically include solicitors’ fees for preparing the application and for the court proceedings, court fees for filing the claim, a barrister’s fees if a hearing is needed, and the costs of obtaining expert evidence if required.

The costs of an application can usually be paid from the estate if the error was not the fault of the beneficiaries but may be awarded against or subsequently recovered from the person who made the error (such as a negligent solicitor).

A cost-benefit analysis should be undertaken before making a rectification application, whether opposed or unopposed. The cost of a rectification application may not be worthwhile for minor errors and a deed of variation may be more appropriate if all interested parties agree.

When Rectification May Not Be Possible

Rectification will be unavailable if there is a lack of sufficient evidence of the testator’s true intentions or errors arose from the testator’s own misunderstanding rather than a drafting error.

An application cannot be made more than six months after the grant of probate if there is no good reason for the delay.

Rectification cannot be used simply because the testator would have made different provisions if they had known certain facts or changed their mind, or because circumstances changed after the will was made.

If rectification is unavailable, alternative remedies can be considered such as a deed of variation, claims under the Inheritance Act 1975, or claims for professional negligence against the will drafter.

Professional Negligence Claims

Rectification claims often arise from negligence by a solicitor in will drafting. In such circumstances, a professional negligence claim may be appropriate in addition to or instead of rectification, such as if the will cannot be rectified but the error caused financial loss.

Professional negligence claims are usually against the solicitor or will writer’s firm for the financial loss caused to the beneficiaries by their negligence, which can include the cost of a rectification application.

How LBMW Solicitors Can Help

LBMW has experience assisting with both opposed and unopposed will rectification applications, as well as professional negligence claims against will drafters.

We can review the will to identify errors and assess prospects for rectification, identify necessary evidence of the testator’s intentions, issue a court application and assist up to any required hearing. We advise clients on negotiating with other beneficiaries and executors to obtain consent to an application where possible and suggest alternative remedies if rectification is not viable.

There is a six-month time limit from the grant of probate to bring a application, so it is important to act quickly if you think rectification is required.

Please contact us for a consultation.

FAQs

Can you change a will after someone dies?

A will cannot be changed simply because someone wants different provisions, but it can be rectified if it does not carry out the testator’s intentions due to a clerical error or a failure to understand the testator’s instructions.

How long do I have to apply for rectification of a will?

There is a six-month time limit from the grant of probate, but the court has discretion to extend if there is a good reason for the delay. However, it is important to seek legal advice promptly if you are considering a rectification application.

Can I rectify a will if there’s just a small mistake?

Rectification is available for errors of any size if they meet the legal requirements but you should consider whether the cost and effort is proportionate to the benefit, especially for minor errors that do not significantly affect the estate distribution.

What happens if my rectification claim is refused?

If a rectification claim is refused, you may decide to accept the will as it stands, or to appeal against the decision if there are grounds to do so. You should take advice on what other remedies may be available, like a deed of variation or Inheritance Act claims. You may also have a claim against the will drafter in professional negligence.

Do all beneficiaries have to agree to rectification?

While consent from interested parties makes the process smoother and cheaper, it is not strictly required as the court can order rectification even in an opposed application if it is satisfied that the legal grounds are met.

Can a will be rectified if the solicitor who drafted it has died or retired?

Rectification is still possible in these circumstances but it may be more challenging to establish a good case without the drafter’s witness evidence. Alternative sources of evidence like file notes, correspondence, and witness statements from others who knew the testator’s intentions will be needed.