Can a Mistake in a Will Be Corrected? A Guide to Will Rectification

Discovering a mistake in a Will after someone has died can cause considerable worry. Perhaps the wrong beneficiary has been named, a gift has been left out, the wrong wording has been inserted or the Will does not appear to reflect what the deceased clearly intended.

So, can a mistake in a Will be corrected after death?

In certain circumstances, yes. The court has the power to correct particular errors in a Will through a process known as Will rectification. However, rectification is a specific legal remedy and is not available simply because a Will appears unfair or produces an unexpected result.

In this guide, our Contentious Probate team at DJF Solicitors explains when a Will may be rectified, what evidence may be required and why it is important to seek advice quickly if you believe a Will contains an error.

What is Will rectification?

Will rectification is the legal process by which the court can correct the wording of a Will where, because of a particular type of mistake, the document does not carry out the deceased’s true intentions.

In England and Wales, the court’s power to rectify a Will is contained in section 20 of the Administration of Justice Act 1982.

The court may order a Will to be rectified where it is satisfied that the Will fails to carry out the testator’s intentions because of:

• a clerical error; or

• a failure to understand the testator’s instructions.

The “testator” is simply the legal term for the person who made the Will.

This distinction is important. Will rectification is not a general power allowing a court to rewrite a Will after someone has died. There must be evidence both that the Will does not reflect the deceased’s intentions and that the error falls within the legal grounds for rectification.

What types of mistakes in a Will can be corrected?

A mistake capable of rectification can be more significant than a simple typing or spelling error.

A clerical error can arise during the process of preparing, copying, editing, assembling or arranging the execution of a Will.

Examples might include:

• the wrong name, amount or figure being inserted;

• a clause being accidentally omitted;

• a clause being included which should have been deleted;

• wording from an earlier draft being used by mistake;

• amendments requested by the testator not being included in the final Will;

• the wrong version of the Will being printed or signed; or

• two people accidentally signing each other’s Wills.

Whether an error qualifies for rectification will always depend on the particular circumstances. The important question is not simply whether there is an obvious mistake, but whether there is sufficient evidence to establish what the deceased actually intended the Will to say.

What does “clerical error” mean in Will rectification claims?

The meaning of clerical error was considered by the Supreme Court in the important case of Marley v Rawlings [2014] UKSC 2.

Mr and Mrs Rawlings had each intended to sign their own Will. However, through an error in the Will-signing process, each signed the document intended for the other.

Following their deaths, a dispute arose over whether the mistake could be corrected.

The Supreme Court concluded that rectification was available and confirmed that the concept of a clerical error should not be interpreted too narrowly. The case demonstrates that rectification may extend beyond straightforward typing mistakes to errors occurring as part of the process of producing or executing the Will.

It remains necessary, however, to establish clearly what the testator intended.

What if the person drafting the Will misunderstood the instructions?

The second basis for rectifying a Will arises where the person preparing it failed to understand the testator’s instructions.

For example, someone might tell their solicitor that they want a particular property to pass to one child, but their instructions are misunderstood and the Will is drafted so that the property passes elsewhere.

If there is clear evidence of what the testator instructed and the Will fails to reflect those instructions because they were misunderstood, a rectification claim may be possible.

This is different from a situation where the Will correctly recorded what the deceased wanted when it was signed, but the deceased later changed their mind without making a new Will.

Rectification cannot be used to make the Will say what family members believe the deceased would have wanted. The focus is on establishing the testator’s actual intentions when the Will was prepared.

What evidence is needed to rectify a Will?

Evidence is often at the heart of a Will rectification claim.

It is not enough to show that the wording seems strange, unfair or inconsistent with what relatives expected. The court must be satisfied that the Will fails to give effect to the deceased’s intentions and must be able to identify what those intentions were.

Important evidence may include:

• the solicitor or Will writer’s file;

• the testator’s original Will instructions;

• attendance notes from meetings;

• draft versions of the Will;

• letters and emails between the deceased and the person preparing the Will;

• notes of telephone conversations;

• written amendments requested by the deceased; and

• witness evidence from the solicitor, Will writer or others involved in the drafting process.

Obtaining the Will preparation file at an early stage can therefore be extremely important.

In some contentious probate disputes, it may also be appropriate to make enquiries of the solicitor who prepared the Will to understand the circumstances in which the instructions were taken and the Will was signed.

Is rectification different from interpreting a Will?

Yes. Sometimes the Will does not necessarily contain a mistake, but its wording is unclear or ambiguous.

For example, a Will might refer to “my property” when the deceased owned several properties, or different clauses within the Will may appear to contradict one another.

In those circumstances, the issue may concern the construction or interpretation of the Will, rather than rectification.

Section 21 of the Administration of Justice Act 1982 permits certain external evidence to be considered where wording in a Will is meaningless or ambiguous.

The distinction can be important. A Will dispute may involve rectification, construction, the validity of the Will or potentially more than one issue. Specialist contentious probate advice can help identify the correct legal route.

Is there a time limit for rectifying a Will?

Yes. Anyone who believes that a Will contains a mistake should act promptly.

Under section 20 of the Administration of Justice Act 1982, an application for Will rectification should ordinarily be brought within six months of the date on which representation in the estate is first taken out. In most cases, this will be the date of the first grant of probate or letters of administration.

An application may potentially be made after the six-month period, but permission from the court will be required. Permission should not be taken for granted.

Delay may also create practical problems. The executors may begin distributing the estate, relevant documents can become harder to obtain and the recollection of witnesses may fade.

For these reasons, if you suspect an error in a Will, it is sensible to seek legal advice as soon as possible and, ideally, before the estate has been distributed.

How do you apply for Will rectification?

Claims for the rectification of Wills are dealt with under Part 57 of the Civil Procedure Rules.

Every personal representative of the deceased’s estate must be joined as a party to a rectification claim. Other people whose interests are affected may also need to be involved depending on the circumstances.

The court will consider the terms of the Will together with the evidence about the deceased’s instructions, intentions and how the mistake occurred.

If the court is satisfied that the statutory requirements are met, it may make an order correcting the Will so that it properly reflects the testator’s intentions.

A rectification order is then recorded with the relevant probate documentation so that the estate can be administered in accordance with the Will as rectified.

Not every case will result in a fully contested court hearing. Where the evidence is strong and the interested parties agree about what has happened, it may be possible to deal with matters more efficiently. Where there is disagreement, court proceedings may be necessary.

Can a Will be corrected without going to court?

Sometimes there may be another way of achieving a practical solution.

Where the relevant beneficiaries agree, it may be possible in appropriate circumstances to rearrange the distribution of the estate using a deed of variation.

A deed of variation does not actually rectify the Will. Instead, it changes the way in which beneficiaries receive their inheritance. There may also be tax and other legal considerations, so advice should be obtained before using this route.

In other cases, what initially appears to be a rectification issue might instead involve:

• interpretation or construction of the Will;

• a challenge to the validity of the Will;

• a claim under the Inheritance (Provision for Family and Dependants) Act 1975; or

• a possible professional negligence claim arising from the preparation of the Will.

Determining the correct type of claim at an early stage can help avoid unnecessary cost, delay and proceedings.

How can DJF Solicitors help with a mistake in a Will?

Finding an error in a loved one’s Will can be particularly difficult where family members, executors or beneficiaries disagree about what the deceased intended.

Our Contentious Probate solicitors at DJF Solicitors can advise executors, beneficiaries and family members where there are concerns about the wording or effect of a Will.

We can help by:

• reviewing the Will and identifying whether rectification may be available;

• advising whether the issue is actually one of rectification, interpretation, validity or another probate dispute;

• obtaining and reviewing the Will drafting file and other relevant evidence;

• contacting the solicitor or Will writer who prepared the Will;

• advising on the six-month time limit for a rectification claim;

• advising where the six-month period has already expired;

• corresponding with executors, beneficiaries and other interested parties;

• exploring whether the dispute can be resolved without contested court proceedings; and

• issuing or defending Will rectification proceedings where necessary.

Early advice can be particularly valuable where the estate has not yet been distributed, as steps may need to be taken to protect the position while the circumstances surrounding the Will are investigated.

Speak to our Contentious Probate solicitors

If you believe that a Will contains a mistake, or you are an executor faced with concerns about whether a Will accurately reflects the deceased’s intentions, it is important not to ignore the issue.

There are strict time considerations in Will rectification claims and the evidence needed to establish the deceased’s intentions may need to be obtained promptly.

Contact DJF Solicitors to speak to a member of our Contentious Probate team. We can review the circumstances, explain the options available and advise on the most appropriate way forward.

Call us today on 0203 504 9138, or email us at info@djfsolicitors.co.uk to schedule your free initial telephone consultation.

Article by Nicole Nedungadi, Private Client Solicitor at DJF Solicitors

This article is intended as general information about the law in England and Wales. It does not constitute legal advice and advice should be obtained on the particular circumstances of any individual case.

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