A last Will and Testament is one of the most important documents that an individual leaves behind when they die. It provides a representation of their wishes in relation to their Estate. Unfortunately, due to several factors there are circumstances when a Will does not accurately portray the Testator’s wishes.
Some inaccuracies can be spotted during the Testator’s lifetime, these can be amended by the testator. However, the problem arises when this comes to light following their death.
Potential claims for Rectification:
In theory, there should be no question as to whether what is written in the Will, mirrors the individual’s true wishes and intentions, since they would have contributed to the drafting of the Will. However, this is not always the case.
Upon the passing of an individual, one may come to the realisation that a clause in the Will would not have been intended to be interpreted in a particular way due to its drafting.
Under section 20 of the Administration of Justice Act 1982, the court has the discretion to allow for the rectification of a Will under two circumstances where the Will fails to carry out the Testator’s intentions, specifically when:
- A clause/several clauses do not portray the wishes of the Deceased in consequence of a clerical error.
- A clause/several clauses fail to correctly portray the wishes of the Deceased on the basis of an incorrect understanding of the Testator’s instructions when the Will was drafted.
Seeking Rectification:
If it comes to light that the Will of the Deceased undermines their true wishes, there are certain requirements that will need to be fulfilled in order to successfully apply for a rectification of this Will.
Generally, the Grant of Probate must either have not been granted at the time of the application or, alternatively, it will need to have been granted within the last 6 months. Although, the Court may consider certain exceptions, and the applicant would have to obtain leave from the court which would then permit them to submit an application.
Upon meeting the above requirement, it is necessary to obtain evidence in support of a claim. This will vary depending on the basis that the rectification is being sought and what would show the Testator’s true intention. In some instances, there may be a statement of wishes or a previous Will set out by the Deceased.
Along with the application, the applicant should provide a witness statement to set out the reasons for the rectification and the background of the making of the Will. This witness statement will typically be prepared by a legal professional and would be accompanied by documents that support the application.
In order to progress the application without the need for a hearing it is necessary to obtain the consent of all the beneficiaries. These consents will form part of the application. By doing this the applicant should avoid a contested hearing in respect of the rectification.
When seeking a rectification of a will, the application must also enclose a draft rectified will for the Court to review. This should also be prepared by a legal professional to avoid any further inaccuracies that may affect the distribution of the estate in a way that the Testator would have intended. The rectified Will needs include the changes sought in order to accurately reflect the Testator’s wishes.
Subject to the Court’s approval upon reviewing the evidence, the newly draft Will becomes the testator’s new will, replacing the one that was being rectified.
Should you have concerns that a Will of a loved one has failed to carry out their intentions and you require assistance, contact our specialist Private Client Litigation Team at info@brethertons.co.uk or call 01295 270999 (Banbury Office), 01869 252161 (Bicester Office), 01788 579579 (Rugby Office), or 01242 472747 (Cheltenham Office) to assist you with this matter.