Correcting Mistakes in Wills
A Will ordinarily can only be amended by the person the Will belongs to during their lifetime. This can create significant issues for executors and beneficiaries where there is a mistake in a Will that affects the distribution of the estate and which has not been corrected before the maker of the Will passes away.
Can a Will be corrected?
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 which 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, under certain circumstances, 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 will involve the solicitor who drafted the Will giving evidence.
Under what circumstances will a Court fix the mistake?
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.
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 which arose in connection with office work of a routine nature which in some cases has gone as far as to include having a married couple sign each other’s Wills instead of their own.
Failure to understand instructions
This route to rectification 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 less lands than was 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 do you work out the Will maker’s intentions?
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 2 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 needs to be made to the Court this must be made within 6 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 where 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 6 month time limit it is not under an obligation to do so and it is always best to bring a claim within the time frame to avoid the further hurdle of having to get consent from the Court to bring a claim outside the time limit. Moreover, once the executors have the Grant of Probate they may move to distribute the estate and even if a successful rectification claim is brought it may prove troublesome to recover assets which have already been distributed in accordance with the error.
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 Will, Trust & Estate Disputes Solicitors using our Freephone number 0800 840 9293 or email firstname.lastname@example.org to let us take your initial details and setup a consultation with one of our experts by phone, video conferencing, or face to face consultations in our offices in Belfast or Bangor. Both our offices are equipped with appropriate social distancing measures including protective screens in all our conference rooms.