Correcting a mistake in a will
If a will contains a mistake then there are legal steps that may be available to correct the position.
Knowledge and approval
You may be able to establish that the maker of the will did not ‘know and approve’ the contents of the will. For a will to be valid the testator (the person making the will) must have knowledge and approval of their will. This principle can be used to rectify a will where, for instance, a mere clerical error has resulted in the will not reflecting the testator’s wishes and intentions.
Arguments may also be made about how the wording of a will is construed and the meaning that should be applied to the words used. A Court may therefore step in to correct a mistake based on inferences taken from the will as a whole. It can also take extrinsic evidence into consideration where there is ambiguity or lack of meaning.
The court has a statutory power to rectify a will where it fails to carry out the testator’s intentions due to a clerical error or a failure of the will writer to understand the testator’s wishes.
It can sometimes be difficult to establish what the testator’s intentions were. If a solicitor was involved in preparing the will then their evidence is likely to be key and the solicitor’s will preparation file could be crucial.
Mistakes take various forms. A common error is a mistake of omission, where a crucial word (or words) have been inadvertently left out. Other errors include a failure by the person drafting the will to appreciate the impact of a provision and the unintended consequences that will result.
Clerical errors can not only be made by solicitors or other professional will writers but by the testator themselves where they are preparing their own will.
If rectification is going to be applied for it is important to avoid delay as strict time limits apply.
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