Rectification of Wills
In the UK, Wills can be rectified only in relation to two types of mistake:
- Mistakes caused by clerical errors; for example, those arising out of office work of a relatively routine nature but also mistakes by a testator in the preparation of his own Will without professional assistance; and
- Mistakes arising from a failure to understand the testator’s instructions; however, this does not include a failure to take instructions or to implement such instructions.
The above power to rectify Wills, only applies to the Wills of testators who die on or after 1 January 1983.
The power to rectify can be exercised to rectify a Will so that it can be admitted to probate as the valid Will of the testator.
Time limit for bringing a claim
An application for rectification must be brought within six months of the date when a Grant of Probate was issued. A claim can still be brought outside of this timeframe, but this will require the permission of the court.
If permission of the court is required, the court will take into account the reasons for the delay in making the rectification application and, in particular, whether any prejudice has been caused by the delay and whether the proceedings were pursued in an efficient manner.
Factors the court can take into account
The court will have regard to the following factors when assessing a claim for rectification:
- The testator’s intentions.
- Whether the Will was expressed in such a way that it failed to carry out the testator’s intentions.
- Whether the Will was expressed as a result of a clerical error or the failure on the part of the draftsman to understand the testator’s instructions.
Rectification or Negligence?
In some circumstances, the applicant may consider bringing a claim in negligence against the draftsman instead of a claim for rectification of a Will.
A disappointed beneficiary, including a charity, will be expected to mitigate their loss by bringing a rectification claim as opposed to a negligence claim. However, if there is no prospect of recovering funds as a result of bringing rectification proceedings, the disappointed beneficiaries, including charities, may decide to bring proceedings for negligence.
What we can do for you?
If you are a charity Executor and have in your possession or under your control the probate or letters of administration, we can assist you with defending an application for the rectification of the Will in respect of which probate was obtained.
If you are a charity beneficiary and have had your legacy reduced because of a clerical mistake or a failure to understand the testator’s instructions, we can help you to mitigate your loss by making an application for rectification.
We can obtain the file from the solicitor who prepared the Will, including copies of all correspondence with the testator and contemporaneous notes of all discussions, to check if the Will was made in accordance with the testator’s wishes.
We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.