If a mistake is discovered in a Will after the testator’s death, there are three ways to fix the error: variation, rectification and construction. Here we look at each method.
A deed of variation, also called a deed of family arrangement, enables beneficiaries to make changes to their inheritance entitlement. All the beneficiaries must agree to the variation. It must be done in writing and signed by any beneficiaries who are prejudiced by it. If the tax liability of the estate is affected by the variation, the executor must also sign the document.
For the estate to be taxed in line with the variation, it must be completed within two years of the testator’s death. A variation can still be made after this time, however, any tax benefits consequential to the variation cannot be used.
If a mistake in a Will arises from a clerical error or a misunderstanding of the testator’s instructions by the person who drafted the Will, it is possible to fix it by applying for rectification under the Administration of Justice Act  s.20. An application must be made within six months of probate being granted.
The court will use its discretion to give effect to the testator’s intentions, rather than the Will as written.
If a mistake or poor drafting makes the intention of a Will unclear, the court can intervene to establish what the testator’s intentions were. It will consider the meaning of the relevant words in light of:
- their natural and ordinary meaning;
- the document’s overall purpose;
- any other provisions of the document;
- the facts known or assumed by relevant parties at the time of execution;
- common sense.
The court will not consider subjective evidence of any of the parties’ intentions. However, it will consider extrinsic evidence of the testator’s intentions where:
- any part of the Will is meaningless;
- any part of the language used by the Will is apparently ambiguous;
- evidence (aside from evidence of the testator’s intention) demonstrates that the language is ambiguous in light of the surrounding circumstances.
Claims against professional Will writers
If it is not possible to fix the mistake using the methods above, and the Will was drafted by a professional, you might choose to raise a negligence claim against the writer. However, you would be expected to have tried every other way to fix the Will and mitigate your loss.
Wills and Estate Planning Solicitors, Bournemouth
Making a small mistake when writing your Will can lead to huge problems down the line. Given the expense and legal complexity of putting an inaccuracy right, it is far better not to make an error in the first place. Our knowledgeable team can ensure your Will is meticulously drafted and operates precisely as you intend. Speak to us about your Will today.