Can a Will be rectified after death?
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 wished their estate to be 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
Courts have interpreted the term ‘clerical error’ broadly. It includes mistakes in office work, routine mistakes, and errors made while preparing and typing a Will.
In the case of Barrett v Hammond and others [2020], the deceased’s Will and codicil divided his estate into 52 parts. A subsequent codicil, however, only accounted for 44 parts, leaving 8 parts with no heir.
The judge found the deceased had no intention to leave these 8 parts intestate. He stated that the court has an ‘obligation to see that, so far as possible, the intentions of the testator are honoured’. Supporting evidence showed the deceased intended to divide his estate into the correct number of parts to make gifts to everyone listed.
The solicitor failed to notice that 8 parts were missing. The judge considered this a clerical error. He interpreted the phrase ‘clerical error’ widely and rectified the Will. He divided the estate into 44 parts, ensuring no part of the estate was left 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 quickly become complex. Handle them carefully. The first step is to try and resolve matters amicably.
If a Will contains mistakes, you should speak to a solicitor. A contentious probate solicitor can tell you if you have a case. They will also advise you on your options.
Even if there are no mistakes, you can still make a claim. This is an Inheritance Act claim and can be made if the Will did not provide for you. You can claim if you were closely related to the deceased. You can also claim if they were supporting you before their death.
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