FAQs: Mistakes in wills

 

How do mistakes arise in wills?

A will is a legal document describing the intentions of the person writing the will (the “testator”) on what should be done with their money, property and possessions when they die.
 
Mistakes can arise in several ways when a will is drawn up. It may be that the procedural requirements relating to the way the will should be signed and witnessed are not followed; the clauses of the will may not reflect the testators intentions due to fraud, mental incapacity, or misunderstanding of legal terminology; the testator may overlook a certain piece of property or intended benefactor; or mistakes might arise through the will being badly worded or containing typos.
 

Can a mistake be corrected after the testator’s death?

Those affected by the mistake may apply to the court for the will to be corrected (“rectified”). This application must be made no more than six months after the grant of probate. Under the Administration of Justice Act 1982, a will can be rectified if the court believes that it does not express the real intention of the testator due to a clerical error. For example, this could be a mistyping of £1,000 as £100.
Courts have taken the view that a clerical error must relate to the actual wording of the will, rather than procedural requirements. In the recent case of Marley v Rawlings the Court of Appeal decided that the Act could not be used to rectify the wills of a husband and wife who had accidentally signed each other’s documents.
 

What happens if the mistake cannot be rectified?

If the mistake relates to the wording of the will it is possible, with the consent of all the beneficiaries, to amend the will via a deed of variation. If the mistake is something that renders the will invalid, for example a procedural error or because mistakes were made due to fraud or the testator’s mental incapacity, the will may simply be set aside. In this case the property will be divided according to the rules on intestacy. These are set out in the Administration of Estates Act, amended in February 2010, which states that the property should be divided between the deceased’s family, with the spouse as first priority, followed by children.
 
If you would like to obtain legal advice on mistakes in wills, Caven can put you in touch with a local specialist solicitor free of charge. So, if you have any questions or would like our help in finding local solicitors please call us on 08001 221 2299 or complete the web-form above.
 
 
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