Making a will is one of the most important legal steps a person can take to ensure their wishes are carried out after their death. However, even carefully prepared wills can contain errors, and these mistakes may lead to disputes or unintended outcomes. In some circumstances, the law in England and Wales allows certain mistakes in a will to be corrected or “rectified”.
At Blackstone Solicitors, we regularly assist clients with both the preparation of wills and the resolution of issues that arise from them. In this article, we explain which mistakes in a will may be rectified, the legal process involved, and why timely advice is essential.
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Understanding Rectification
Rectification is the legal process by which a court can amend a will to reflect the true intentions of the person who made it (the testator) when the document contains a mistake. This is not the same as rewriting the will to suit the preferences of the beneficiaries – it is about correcting errors so that the will accurately records the wishes the testator had when it was created.
The main statutory provision is section 20 of the Administration of Justice Act 1982, which gives the court the power to rectify a will if it is satisfied that it fails to carry out the testator’s intentions because:
- There is a clerical error; or
- The person who prepared the will failed to understand the testator’s instructions.
Types of Mistakes That May Be Rectified
Mistakes in a will can occur for many reasons, from simple administrative oversights to misunderstandings during drafting. The law recognises three main categories in which rectification may be possible.
- Clerical Errors
A clerical error is a mistake arising from the process of recording or copying the will. These errors are often accidental and may not reflect any misunderstanding of the testator’s wishes – they are simply mistakes in execution or transcription. Examples include:
- Typing or spelling errors that change the meaning of a clause.
- The accidental omission of a beneficiary’s name.
- The insertion of the wrong property description.
- Copying a previous version of the will rather than the final intended version.
Example: A will states that a property at “14 High Street” is to be given to a niece, but the testator actually owned “41 High Street” and intended to gift that property instead. If evidence supports this, the court may rectify the will to correct the address.
- Failure to Understand Instructions
Rectification can also be ordered if the person who drafted the will misunderstood the testator’s instructions. This often occurs when professional drafting is not involved, but even solicitors can occasionally misinterpret complex wishes.
Example: A testator instructs that their estate is to be divided equally between their three children. The drafter mistakenly believes this means “children” to include stepchildren, and drafts the will accordingly. If evidence shows that the testator intended only biological children to benefit, the court may correct the will.
- Failure to Carry Out Instructions
This type of mistake occurs where the person drafting the will understood the instructions but failed to implement them properly in the document.
Example: A client asks for a life interest trust for their spouse, with the capital to pass to children after the spouse’s death. The drafter omits the trust clause and simply leaves the estate outright to the spouse. If proven, rectification may be granted to insert the intended trust provisions.
What Cannot Usually Be Rectified
While the rectification rules are useful, they are not a solution to every problem with a will. In particular:
- Changing the testator’s mind after death: If the testator simply changes their mind but dies before updating the will, the court cannot alter it.
- Ambiguous wording without evidence of error: Where the will’s meaning is unclear but there is no proof of a mistake, rectification may not be available (though other interpretation rules may apply).
- Disputes about fairness: Rectification is not a tool for adjusting the will to make it “fairer” to certain beneficiaries.
The Process of Rectifying a Will
- Time Limits
An application for rectification must generally be made within six months from the date of the grant of probate. The court may allow late applications, but strong reasons are needed for any delay.
- Gathering Evidence
Rectification cases depend heavily on evidence of the testator’s true intentions. This can include:
- Draft notes taken during will preparation.
- Letters, emails, or instructions given to the drafter.
- Witness statements from those present when instructions were given.
- Previous versions of the will.
- Court Application
If agreement cannot be reached between the executors and beneficiaries, a formal application must be made to the High Court. The court will consider:
- What the testator’s actual intentions were.
- Whether the will fails to carry out those intentions.
- Whether the failure arose from a clerical error or a failure to understand or implement instructions.
If satisfied, the court will order the will to be rectified.
Alternative Solutions
In some cases, other legal remedies may be more appropriate than rectification:
- Construction Claims: Where wording is unclear, the court can interpret the will without altering its text.
- Mutual Agreement: If all beneficiaries agree, they may vary the will through a deed of variation (though this has separate tax implications).
- Negligence Claims: If a professional drafter’s error has caused loss, beneficiaries may have a claim for damages.
The Importance of Prompt Action
Time is critical in will rectification matters. Delays can reduce the likelihood of success, as memories fade and documentary evidence may be harder to obtain. In addition, the six-month limitation period means acting swiftly after the grant of probate is essential.
At Blackstone Solicitors, we often advise both executors and beneficiaries on whether a rectification claim is likely to succeed. We also represent clients in negotiations and, where necessary, in court proceedings to resolve disputes efficiently.
Preventing Mistakes in the First Place
While rectification can address certain errors, prevention is always better than cure. To reduce the risk of mistakes in your own will:
- Use a qualified solicitor experienced in wills and probate.
- Give clear, detailed instructions in writing, and review draft wills carefully.
- Update your will regularly to reflect changes in assets, relationships, or wishes.
- Consider complex structures carefully – such as trusts – and ensure they are recorded accurately.
Why Choose Blackstone Solicitors
Our experienced team at Blackstone Solicitors advises clients across England and Wales on all aspects of wills, trusts, and probate. Whether you are preparing a will, concerned about the validity of a will after a loved one’s death, or considering a rectification claim, we offer clear, practical advice tailored to your situation.
We understand that disputes about wills can be emotionally charged, especially when they involve family members. Our goal is to resolve matters sensitively but firmly, protecting your legal rights while aiming to avoid unnecessary conflict and expense.
Conclusion
Mistakes in a will can have serious consequences, potentially undermining the testator’s intentions and leading to costly disputes. The law in England and Wales allows certain mistakes – specifically clerical errors and failures to understand or implement instructions – to be rectified by the court.
However, strict time limits and evidential requirements mean that early legal advice is vital. At Blackstone Solicitors, we can assess whether rectification is appropriate in your circumstances and guide you through the process from start to finish.
How we can help
We have a proven track-record of advising upon all aspects of private client work. We will guide you through the process and ensure all checks are carried out swiftly and efficiently and we firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
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How to Contact Our Private Client Solicitors
It is important for you to be well informed about the issues and possible implications of writing a Will. However, expert legal support is crucial in terms of ensuring a positive outcome to your case.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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