Solicitors specialising in contentious probate matters are often faced with disappointed beneficiaries who comment after seeing a will of a loved one that “those cannot be the wishes of the deceased”.
If the wishes of the deceased have, genuinely, not been included within a will there may be a claim for the will to be amended. Legally, this is often referred to as being a claim for ‘rectification’.
It is well-established law that “… an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases …”. This may result in a bizarre distribution but if it is in accordance with the deceased’s wishes, a disappointed beneficiary may have difficulties in contesting a will.
If, however, a will does not include the true intentions of the person making the will (known as the testator) due to the act of a solicitor who drafted the will, it may be possible to bring a claim for rectification and/or professional negligence.
How to contest a will: rectification
Section 20 of the Administration of Justice Act 1982 provides the grounds for rectifying a will, namely:
“If the court is satisfied that a will is so expressed that it fails to carry-out the testator’s intentions, in consequence of a:
- clerical error; or
- failure to understand his intentions,
it may be ordered that the will should be rectified so as to carry out his intentions”.
Clerical error
“Clerical error” was defined in the case of Wordingham v The Roll Exchange Trust Company [1992] as meaning “An error made in the process of recording the intended words of the testator and the drafting or transcription of his will”. For example, if a testator gave instructions that all his children were to receive an equal share of his estate but the solicitor only named some of the children, clearly this would be seen as a clerical error. If, however, on the other hand, the draftsman misunderstands the law, this will not amount to a “clerical error” but professional negligence.
In practice it can often be difficult to establish whether a claim for rectification or professional negligence should be pursued. Legal advice should be sought on the specific facts of your case as to whether it is a clerical error or professional negligence.
Failure to understand instructions
If the draftsman applied his mind to the meaning and effect of the words but simply achieved the wrong result due to misunderstanding the testator, the disappointed beneficiary will only succeed with a claim to rectify the will if he is able to show the following:
- what the testator’s intentions were with regard to the specific clauses in his will;
- that the will fails to reflect the testator’s intentions;
- what were the testator’s intentions;
- that the draftsman misunderstood those instructions; and
- that the failure of the will to reflect the testator’s intentions was due to a failure on the part of the draftsman to understand those instructions.
Evidence required
From the outset it will be necessary to obtain a copy of the solicitor’s file together with the solicitor’s comments as to whether the will accords with the testator’s wishes. If it is apparent from the file that the draftsman did understand the testator’s instructions but simply misapplied the law, the disappointed beneficiary will have a claim in professional negligence and not for rectification of the will.
Time limit for seeking rectification
An application for rectification must be brought within six months of the date when a Grant of Probate was issued. Any claim brought after this period will require the permission of the court. The court will take into account the reasons for the delay in seeking rectification and in particular, whether any prejudice has been caused by the delay and whether the proceedings were pursued in an efficient manner.
Rectification and negligence
Virtually every case of rectification of a professionally drafted will involves an original negligent act by the draftsman. It is well established law that a disappointed beneficiary can bring a claim for professional negligence against the draftsman of the will. It is equally well established that a disappointed beneficiary is under a duty to mitigate his loss which he may do so by bringing an application for rectification. This duty does not require a claimant to embark upon speculative litigation as a “claimant need not take the risk of starting an uncertain litigation against a third party”.
It may be more difficult for a claimant to succeed with a rectification claim than a negligence claim if the solicitor disputes the error in the will and there is no clear evidence of an error.
Implications of rectification
If a court finds that a clerical error has occurred or the will draftsman has failed to understand the intentions of the testator, the court will make a ruling as to the true intentions of the testator and the estate will be distributed in accordance with those true intentions.
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