How to Correct Mistakes in Wills: Our Helpful Guide

How do you fix a mistake in the will of a deceased person?

Ordinarily, a will can only be amended by the person the will belongs to (known as the testator) during their lifetime. This can create significant issues for executors and beneficiaries when a will contains a mistake that affects how the estate is distributed and the testator has passed away.

Can you correct mistakes in wills following the death of the testator?

Yes. If matters are uncontentious or a beneficiary who is better off because of the mistake decides to settle matters without going to court, then the parties may wish to consider a Deed of Variation. This is a document that can be used to change how an estate is distributed under a will in a tax-neutral way, so long as certain formalities and timeframes are met. Please see our article on Deeds of Variation for more information.

Should matters become contentious or should the beneficiary who benefits from the mistake refuse to accept that there is a mistake, then there are certain circumstances under which an application can be made to the court for an order to rectify the will. This will ordinarily be made by the executors of the will, and involve the solicitor who drafted the will giving evidence.

Under what circumstances will the court correct mistakes in wills?

Under the statutory powers available to the court, it may rectify a will if it fails to carry out the intentions of the person who made it as a result of:

• a clerical error; or
• a failure to understand the instructions of the person making the will.

Clerical error

The court has adopted a wide definition for ‘clerical error’ in recent times. A clerical error can be a ‘slip of the pen’, i.e. a typographical error such as writing ‘£100,000’ instead of ‘£10,000’ or simply naming a beneficiary incorrectly. However, ‘clerical error’ has also more recently been held to include any error that arose in connection with office work of a routine nature, which in some cases has gone as far as including having a married couple sign each other’s wills instead of their own.

Failure to understand instructions

This route to rectifying mistakes in wills is much more limited and is engaged when there is a miscommunication between the person who the will belongs to and the solicitor who took instructions for drafting the will. For example, if a person gives instructions for certain lands to be given to one beneficiary, and the solicitor misunderstands and drafts the will to include more or fewer lands than were intended, then this could potentially be rectified by the court. This can be difficult to prove and it does not cover drafting errors, such as a solicitor using the wrong terminology in drafting the will despite clearly understanding the instructions.

How can you work out the original intentions of the testator?

A will is ambulatory, which means that it has no effect whatsoever until the person who made the will passes away. However, the point in time for ascertaining what the intentions were is at the time that the will was made. A court may take into account the evidence of the solicitor who made the will, any notes taken by the solicitor for drafting the will, any notes or letters made by the deceased, and evidence from other parties about the intentions.

Are there any time limits for rectifying a will?

Should the matter settle outside of court and the parties agree to enter into a Deed of Variation, this ought to be executed by the relevant parties within two years of the date of death in order to avail of the tax-neutral benefits for the person who is giving up part/all of their entitlement.

Should the matter become contentious and a rectification claim need to be made to the court, this must be made within six months of the date of a grant of probate being issued in the estate. Obtaining a grant of probate is a proof process that the executors of the will must go through in order to get access to the estate assets if their value is over the relevant threshold. As there is a preliminary requirement to lodge an inheritance tax return, this process can be relatively short if the estate is modest, and lengthy if the estate is valuable with multiple assets.

Whilst the court may consider a claim brought after the expiration of the six-month time limit, it is not under an obligation to do so and it is always best to bring a claim within the timeframe to avoid the further hurdle of having to get consent from the court to bring a claim outside of the time limit. Moreover, once the executors have the grant of probate, they may move to distribute the estate. In this case, even if a successful rectification claim is brought, it may prove troublesome to recover assets that have already been distributed in accordance with the error.

Need help? Why not contact our wills, trust and estate disputes solicitors?

Whether you are a beneficiary who is disadvantaged by a mistake in a will, a beneficiary who does not believe there is a mistake in the will, or an executor who is struggling to deal with competing interests and requires advice about rectifying a will, then take the next step and contact our wills, trust and estate disputes solicitors using our freephone number 0800 840 9293 or email willdisputes@wilson-nesbitt.co.uk.

We will take your initial details and set up a consultation with one of our experts by phone, video conferencing, or face-to-face consultation in our offices in Belfast or Bangor.

FAQs

What happens if there is a mistake in a will?

If a will is found to contain a mistake after the person who made it (known as the testator) died, there are several ways to fix the mistake, depending on the nature of the error.

The first option is variation, using a so-called deed of variation, which allows beneficiaries to make changes to their inheritance entitlement. For this to work, every beneficiary must agree to the variation and sign their name to the deed.

The second option is rectification, which applies when the mistake is due to a clerical error or a misunderstanding of the testator’s instructions by the person who drafted the will. An application for rectification must be submitted to the court within six months from the grant of probate.

The final option is construction, which may be necessary when a mistake or poor drafting makes the will unclear. In this instance, the court can intervene to determine what the testator’s intentions were by considering the relevant wording in light of several factors, including the natural and ordinary meaning of the words; the overall purpose of the will and its other provisions; plus any other facts or assumptions known to the relevant parties at the time of the will’s execution.

Which mistakes can be rectified in a will?

Wills can be rectified when one or several of its beneficiaries feel that the document doesn’t reflect the true intentions of the testator, i.e. the person that made it. This can be due to poor drafting, a clerical error, or the will being otherwise unclear in its intentions. The options available depend on whether the mistake is non-contentious, i.e. when all beneficiaries agree that a mistake has been made. 

What is the time limit for fixing a mistake in a will?

Time limits depend on the nature of the mistake and the type of claim you intend to bring.

There are short time limits for claims under the Inheritance (Provision for Family and Dependents) (NI) Order 1979 or for correcting a Will. The time limit for both of those claims is six months from the Grant of Probate, which is the formal process where the Executors prove the Will and are authorised by the Court to deal with the deceased assets.

Whereas time limits for claims of proprietary estoppel depend on the relevant circumstances and can vary.  And technically there is no time limit for contesting the validity of a Will on the basis that if the Will turns out to be invalid then it is invalidated as if it never existed as a Will.

However, despite any time limits, it’s really important to act quickly if you find an issue with a Will.  Although once the assets have left the estate it’s not impossible to retrieve them if they have been sold or disposed of it’s much harder to recover them, even if you have a good cause.

What should you do if you think a Will is wrong?

If you think that a will contains a mistake or doesn’t properly reflect the intentions of the testator, you may seek to have the mistake fixed or choose to challenge the will’s validity. For this, you will need the assistance of a qualified and experienced solicitor.

Get in Touch

Wilson Nesbitt’s Private Client team focus on Wills, Trust and Estate Disputes. We can help guide you forward, contact us on 0800 840 9293 or email us at willdisputes@wilson-nesbitt.co.uk