Ambiguous Wills & Will Rectification

The most common disputes that arise in relation to the interpretation of wills are:

• Ambiguous descriptions of property disposed of in the will.
• Problems with identification of the extent of the interests given by the will.
• Problems with identification of the beneficiaries named in the will.

If the will is ambiguous, and the beneficiaries are not able collectively to agree how it should be interpreted, it will be for the court to decide its meaning.

Both legislation and case law provide specific interpretation rules.

The starting point is that the court must interpret the will in the light of the actual words used. The power of the court to supply, omit or change words, as part of this interpretation process (known as "construction"), is very limited.  It may be obvious to the parties that an error has been made in the wording, but the court cannot supply, omit or change words if the wording makes sense on the face of the words used.

Where the will does not include the true intentions of the testator it may be possible to bring a claim for rectification. The court will order a will to be rectified to carry out the testator's true intentions where the will fails to do so due to a clerical error or the will writer's failure to understand the testator's actual intentions. On an application for rectification, the court is able to consider the wider circumstances surrounding the making of the will.

Where the will does not include the true intentions of the testator because of poor drafting it may be possible to bring a professional negligence claim against the will writer.