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Mistakes in Wills - What Can Be Done?

Philip D'Arcy

Partner Philip D'Arcy, in our Dispute Resolution team, explains what can be done when there is a mistake in a deceased person's will.

Your will covers what should happen to everything you own; your house, your savings, investments and your belongings, so is a significant document.  This is one reason why formalities are required to create a valid will. However, mistakes do happen, so what can be done when there is a mistake and the person who made the will has died?

The courts have a limited power to rectify errors where the will as written does not reflect the true intentions of the person making it. This applies only where the mistake is due to a clerical error or a failure to understand the Testator’s instructions. In Slattery v Jagger the gift of the house in the will left out the rather important words “to my wife”, but the court was able to rectify this as being a clerical error.

This power can be extremely useful. In the leading case a husband and wife executed mirror wills but when they were signing, the solicitor handed the wife’s will to the husband for signature and vice versa.  It was only after the wife had died that the problem came to light. The case went all the way to the Supreme court as there were issues about whether or not there was a valid will at all.  However the court concluded that the mistake was clerical in nature, so the two wills could be rectified and the court was able to give effect to what both husband and wife intended.

There are limits to what the court can do to rectify an error. In one case solicitors were held negligent and had to compensate a widow who lost out where the client had returned the will saying it was signed dated and witnessed but on examination only the witnesses had signed - he had not.

Where the error is not clerical, but the will draftsman misunderstands the legal effect of the words he uses, then rectification is not available. In the case of Rainbird v Smith the will left everything in equal shares to the three daughters “as shall survive me”. One of the daughters had already died,  leaving two children. Under the normal rules these children would take their mother’s share unless the will clearly excluded this. It was clear that Mum had meant only the living daughters to share her estate but plain words were not used and the court said it would be difficult to describe this as a clerical error. 

In some instances the court may be able to interpret the will in the way intended.  In Parkinson v Fawdon half the estate was left to “my nephew Mark Parkinson of 215 Ditching Road.”  There was no Mark Parkinson, but living at 215 Ditchling Road were a niece’s husband Alan Parkinson and a great nephew, Justin Parkinson. The court having considered the evidence decided that  it was clear that the will was referring to Justin and so the court interpreted the references to Mark as meaning Justin; so giving effect to what the deceased wanted but without the need to rectify.

Rectification cannot apply where the mistake is not in the will itself but a mistaken understanding as to the facts, leading the person to make a different will than they would have. In Re Bellis the mother wanted to treat her two daughters equally. She made a new will giving one daughter a larger share because she mistakenly believed that she had given the other daughter more financial assistance than she actually had.  Although it was clear that mum’s understanding was a mistake, the error was about the facts not in the drafting, so the will could not be rectified. In fact the court came to the view that mum’s memory was clearly so impaired that she lacked capacity and her new will was held invalid and so the right result was achieved.

An application to rectify a will should be brought within six months of the Grant of Probate. The court has power to allow a later application but it is always important to act quickly.

So the court can use its powers of interpretation and its limited power of rectification to help in some circumstances.  However, the lesson here is to avoid mistakes but if they happen to act quickly.

For further information or legal advice, please contact Philip D'Arcy.

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.