A will is one of the most important legal documents a person will ever make. It sets out who should inherit their property, money, and possessions after death, and gives clarity to families at a difficult time. However, it is not uncommon for wills to contain mistakes. These errors may be clerical, such as incorrect names or dates, or they may stem from the person drafting the will misunderstanding the testator's wishes. When such errors are discovered after death, families are often left asking whether anything can be done to put them right. The law does provide a solution in certain circumstances, through a process known as rectification. This ensures that the will truly reflects the intentions of the testator, rather than being undermined by avoidable mistakes.
Will rectification is the legal process of correcting a mistake in a will so that it gives effect to the true wishes of the person who made it. The relevant law in England and Wales is set out in Section 20 of the Administration of Justice Act 1982. Under this provision, the court has the power to amend a will if it can be shown that it fails to carry out the testator's intentions due to an error.
An application for rectification is made to the court, usually by an executor or beneficiary who is affected by the error. If successful, the court orders that the will be read and interpreted as though it had been correctly drafted in the first place.
Not every mistake can be corrected through rectification. The law sets out specific grounds upon which a court can order changes to a will. These are:
- Clerical errors - These include typographical mistakes or slips in the drafting of the will. Common examples are the misspelling of a name, incorrect dates of birth, or leaving out a word that changes the meaning of a clause. For instance, if a will refers to 'my nephew John Smith' but the deceased had no nephew by that name, and it is clear the intention was to refer to 'James Smith', the court may rectify the error.
- Failure to understand the testator's instructions - This occurs where the person preparing the will misunderstood or wrongly recorded what the testator wanted. For example, if the testator instructed their solicitor to leave 'my savings account to my daughter' but the will was drafted to leave it to 'my son', rectification may be ordered.
It is important to note that rectification is not available simply because someone disagrees with the contents of the will or believes the distribution to be unfair. The purpose is to correct errors in recording the testator's wishes, not to alter those wishes after the fact.
Rectification claims are closely linked to probate. When a person dies, executors must apply for a grant of probate to prove the will and administer the estate. However, if the will contains mistakes, probate can be delayed or complicated while the issue is resolved.
Executors may be placed in a difficult position if they are aware of an error but proceed to distribute the estate according to the incorrect terms of the will. They risk personal liability if the estate is not distributed in line with what the court later determines to be the correct interpretation. For this reason, executors who suspect an error should seek legal advice and, where appropriate, apply for rectification before finalising probate and distributing assets.
Beneficiaries can also bring rectification claims if they are disadvantaged by an error in the will. In some cases, disputes arise between beneficiaries as to whether an error exists and what the testator's true intentions were. These disputes often form part of wider contentious probate proceedings.
Applications for rectification must normally be made within six months of the grant of probate being issued. This time limit is designed to provide certainty and prevent estates from being held up indefinitely.
However, the court does have discretion to allow late applications if there are good reasons for the delay. For example, if the mistake only came to light after the estate accounts were prepared, or if beneficiaries were unaware of their rights until later, the court may permit an application outside the six-month period.
Even so, it is always best to act quickly. Executors and beneficiaries who believe there may be an error in a will should seek legal advice as soon as possible, ideally before probate is finalised.
To understand how rectification works in practice, consider these scenarios:
- A will leaves '£50,000 to my niece Sarah Brown' but the testator had no niece of that name. Evidence shows that they intended to leave the money to their niece Susan Brown. The court may rectify the will accordingly.
- A solicitor records the testator's instructions incorrectly, leaving a gift of 'my shares in XYZ Ltd to my son' when the testator had said 'to my daughter'. Rectification can correct this drafting error.
- The will leaves 'all my property in London' to a friend, but the testator owned no property in London, only a flat in Brighton. If evidence shows this was a clerical mistake, rectification may apply.
These examples illustrate that the key question is whether the will fails to reflect the testator's actual intentions due to an error, rather than whether the distribution seems fair.
Rectification claims can be complex and, in some cases, contentious. The applicant must provide evidence of the testator's true intentions, which is not always straightforward after death. Witness statements, draft versions of the will, notes made by solicitors, and other documents may be used to support the claim.
There is also the potential for disputes between beneficiaries. Those who benefit under the will as drafted may oppose rectification, while those disadvantaged by the error may push for it. Such disputes can become expensive and may delay the administration of the estate.
Because rectification alters a legal document after death, courts apply the remedy cautiously. They will only grant rectification where the evidence clearly shows the will does not reflect the testator's true wishes.
Rectification applications are a specialised area of probate law. At Premier Solicitors, we provide expert advice to executors and beneficiaries facing these issues. Our team has extensive experience in contentious probate and can:
1. Assess whether a mistake in a will is capable of being rectified under the law.
2. Advise executors on their duties where they suspect a will may be incorrect.
3. Gather the necessary evidence to support an application for rectification.
4. Represent clients in court proceedings where disputes arise between beneficiaries.
By acting quickly and seeking professional guidance, executors and beneficiaries can ensure that the estate is distributed in line with the testator's true wishes, while minimising the risk of disputes and delays.
While wills are intended to provide clarity, errors do sometimes occur. When this happens, the law provides a remedy through rectification, ensuring that the document accurately reflects the testator's intentions.
However, the remedy is limited to specific circumstances, namely, clerical errors and failures to understand instructions.
Because rectification interacts closely with probate, it is vital for executors and beneficiaries to seek advice early. Mistakes left uncorrected can cause serious problems during estate administration, leading to delays, disputes, and potential liability.
If you believe a will may contain an error, do not wait until after probate is complete. Specialist legal advice can clarify your options and, where appropriate, help you apply to court for rectification.
At Premier Solicitors, we understand the stress and uncertainty that errors in a will can cause. Our experienced contentious probate team provides clear, practical advice on rectification claims, guiding clients through every stage of the process.
Whether you are an executor uncertain about your duties or a beneficiary concerned that a mistake has left you disadvantaged, we can help. We will act quickly to protect your position, resolve disputes, and ensure that the estate is administered in line with the true wishes of your loved one.
If you have any further questions regarding Will rectification or require assistance in respect of a probate matter, please do not hesitate to contact us contentiousprobate@premiersolicitors.co.uk or call our team on 01234 358 080.
Read more blog posts which Nina has written for this website.
