When can a Will be rectified?
A Will can be rectified when there are errors, ambiguities or omissions that fail to accurately represent the testator's intentions. These errors could be due to various reasons, such as drafting mistakes, misunderstanding of legal terms or changes in circumstances that were not properly accounted for at the time of drafting the Will.
Common scenarios where rectification may be necessary include:
- Typographical Errors: Simple mistakes in typing or language that result in misinterpretation of the Will's meaning. Imagine a gift of £1,000,000 instead of £100,000.
- Ambiguous Language: Unclear or vague wording that could lead to multiple interpretations, causing confusion among beneficiaries. Imagine “I give my house to my family” for a couple that are not legally married and there are children from previous relationships. What does “my family” mean?
- Failure to Include Assets or Beneficiaries: If the testator intended to include certain assets or beneficiaries in the Will but failed to do so, rectification may be required to reflect their true wishes.
How is a Will rectified?
An application to rectify a Will must be made to the court. The process differs depending on whether the application is opposed. The application should be made within 6 months of the date of issue of the Grant of Probate. If this date has passed, it may still be possible to make an application, but the court's permission would need to be obtained.
If the court issues an order for rectification, the necessary amendments would then be made to the Will. This process involves:
- Revising the Will to reflect the court's decision accurately;
- Ensuring all beneficiaries and executors are informed of the changes; and
- Obtaining a new Grant of Probate, if the Will has already been admitted to probate, reflecting the rectified terms.
What are the consequences of rectifying a Will?
The rectification might alter the distribution of the estate and subsequently, affect the beneficiaries. Therefore, it is important to manage the beneficiaries’ expectations and communicate clearly about the reasons and implications of the rectification process.
The process of rectifying a Will can be costly, especially if the matter is contested. It could involve legal fees, court fees and the potential costs of gathering evidence. It is crucial therefore, to weigh the costs of the process against the possible outcomes.
Professional negligence
Where a Will has been drafted by a professional, such as a solicitor or a Will writer, and a claim for rectification has been made, a professional negligence claim may also arise.
In cases where alleged negligent drafting of a Will comes into question, there is an expectation placed upon the claimants to mitigate damages by pursuing rectification proceedings before resorting to a negligence claim. However, despite this, where a rectification claim is successful, it may be possible to seek damages from the negligent solicitor to recover the legal costs of the rectification application.
Conclusion
Rectifying a Will requires careful consideration of the specific circumstances and legal requirements involved. At TWM Solicitors, our team of experts is dedicated to assisting clients with all aspects of estate planning and administration, including Will rectification.