While practitioners try their best to ensure that a Will properly records their client’s wishes, it is inevitable that mistakes can sometimes happen.
Where the testator is still alive, it is generally easy to fix the will as they can correct the mistake by a codicil or by making a new Will.
If a Will contains a mistake and the testator has passed away, it can be more complicated.
Where all of the beneficiaries agree, a Deed of Variation can be used to correct the mistake after death, but it must be completed within two years after the deceased died if it is to be effective for tax purposes.
If the matter is contentious, an application to Court may be necessary for rectification of the mistake. However the Court can only rectify a mistake or an error in a Will if the mistake was due to a clerical error, or the Will drafter’s failure to understand the instructions of the testator.
If there has been a failure to carry out the testator's intentions, it could also be appropriate to pursue a professional negligence claim against the will drafter but it is generally accepted that this should be done after conclusion of a claim for rectification.
Rectification in its simplest form is a means by which a defect in a document can be corrected; the document is amended and it will continue to take effect as if it was originally in the corrected form. This equitable remedy is not limited to correcting errors in contractual documents in the commercial world, but can include correcting an error in a Will pursuant to section 20 of the Administration of Justice Act 1982.
Section 20 of the 1982 Act provides that,
“20.— Rectification.
(1) If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence (a) of a clerical error; or (b) of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions.
(2) An application for an order under this section shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out.”
It should be noted that rectification is a discretionary remedy. The Court will only exercise its discretion so as to give effect to the intentions of the testator.
In determining whether a will should be rectified, the Court should therefore consider (1) what the testator's intentions were in relation to the disposition that is the subject of the rectification, (2) whether the Will, as drafted, fails to carry out those intentions and (3) whether the Will is expressed as it is due to either a clerical error or, a failure on the part of the draftsman to understand instructions.
The words "clerical error" do not have a precise, well established or technical meaning so they must be interpreted in their context.
The potentially significant scope of the concept of a "clerical error" was demonstrated in the case of Marley v Rawlings [2014]. In this case, the solicitor acting for the claimant's parents had drafted mirror Wills. The solicitor made a mistake during the execution process and each parent signed the wrong Will. The Supreme Court adopted a wide interpretation to the meaning of “a clerical error” and held that a clerical error has arisen when the solicitor handed the wrong will to each parent to sign. At paragraphs 75 to 76 of the Judgment Lord Neuberger said:-
“75. I accept that the expression “clerical error” can have a narrow meaning, which would be limited to mistakes involved in copying or writing out a document, and would not include a mistake of the type that occurred in this case. However, the expression is not one with a precise or well-established, let alone a technical, meaning. The expression also can carry a wider meaning, namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of, a document (save, possibly, to the extent that the activity involves some special expertise). Those are activities which are properly be described as “clerical”, and a mistake in connection with those activities, such as wrongly filing a document or putting the wrong document in an envelope, can properly be called “a clerical error”.
The case of Kell v Jones & 18 Ors [2012] is a reminder that the Court will not direct that a Will should be rectified under s20 AJA 1982 if a failure to carry out a testator's intentions is not due to a clerical error nor the draft's failure to understand his instructions. The Court found that the draftsman had believed that the words he used achieved the testator’s intentions and had carefully considered the words he used. The draftsman had misunderstood the effect of the words he had used. Rectification did not extend to correcting mistakes not made inadvertently.
The recent case of Kelly v Bennan [2020] is a good example of a successful rectification claim.
In this case, the deceased wished to divide the residue of his estate into six equal shares and divide those between 5 named beneficiaries and the last one-sixth was to be divided equally between the deceased’s late sister’s five children. His testamentary intentions were clear. Unfortunately there was a clerical error when the will was typed up. It should have recorded that the residue was to be divided into six equal shares and then identify the beneficiaries to whom those shares were to be divided. Instead the will simply listed all 10 of the beneficiaries and then added "in equal shares absolutely".
The Court granted rectification of the Will in the terms sought, as this was an obvious clerical error and that the Will did not reflect the deceased’s testamentary intentions. A read of the Judgment is also a useful reminder of the wider principles of rectification. It can be found here.
Please contact our Disputed Wills and Trusts Team by telephone on freephone 0800 0931336, or by email at willdisputes@ashfords.co.uk for a no obligation chat to see how we can help you.
