For a Will to be valid it must comply with various requirements as well as record the intentions of the will-maker (the Testator). The requirements to make a valid Will can be found here. This article looks at how to rectify or change a Will that has already been made.
If the Will fails to record the intentions of the Testator it will be found to be invalid. There are five grounds on which a Will can be held to be invalid. The most common ground on which a Will can be rendered invalid for a failure to record the Testator’s intentions is the ground of want of knowledge and approval.
The Court has the power to rectify Wills where there has been an obvious error in its drafting resulting in its terms being ambiguous, uncertain or downright incomprehensible. It does not give the Court power to re-write the Will, but does enable it to rectify a drafting error or clear misunderstanding of the instructions of the Testator. In a (relatively) recent case, this mechanism saved the Wills of a married couple who had each erroneously signed the other’s Will.
What applications can be made to change a Will?
Section 20 of the Administration of Justice Act 1982 (section 20) allows the Court to step in if it “is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence of a-
- (a) clerical error; or
- (b) failure to understand his instructions…”
A clerical error can include the inadvertent omission or inclusion of words, mathematical errors or the blind use of precedent wording which undermines the Testator’s intentions.
A failure to understand the Testator’s instructions is exactly what the wording suggests: the Testator’s instructions are to achieve [x] but due to the misunderstanding of the will-drafter, outcome [y] occurs.
Who has to prove what?
The onus of showing that the case falls within the scope of section 20 is on the party seeking to rectify the Will.
They must prove their case on the balance of probability but because they are questioning the intentions expressed in the Will, the Courts tend to expect cogent evidence of what the Testator intended. This will often come from the solicitor’s file, notes or letters prepared by the Testator, and other professional advisers and friend in whom they confided those intentions.
What is the time limit?
An application to change a Will must be made quickly.
As with the case of claims under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act), the claim needs to be commenced within 6 months of the date of the grant of probate. Claims can be brought out of time with permission of the court and the same considerations that apply to out of time claims under the 1975 Act also apply to claims under section 20.
Given that a claim to rectify the Will can ensure that the Testator’s true intentions are carried into effect, it is really important to identify at an early stage a specialist legal adviser who is able to discuss the merits of the claim as well as the cost effectiveness of pursuing or defending an application.
We offer claim review meetings where we can take you through the application as well as other potential relevant claims. We advise you on the best way forward, always keeping an eye on whether or not it is cost effective for you to launch or oppose an application to rectify the Will.