Mistakes in Wills – rectification and professional negligence

Although it’s not a common occurrence, Wills do sometimes contain errors. An example I’ve seen recently is where the testator instructed his solicitor to place half the matrimonial property on life interest for the wife with the remainder to the children. Unfortunately, the Will dealt with the life interest but in error it failed to leave the remainder to the children. The wife was the residuary beneficiary of the estate so the Will as drafted did not carry out the testator’s wishes and potentially deprived the children of their share in the property.

So, what could the family do to rectify this error?

Rectification

Section 20 of the Administration of Justice Act 1982 enables the Court if satisfied that it fails to carry out the testator’s intentions because of a clerical error or a failure to understand his instructions, to direct the Will be rectified to carry out the testator’s intentions. In effect, this means the court may rectify his Will by the inclusion as well as the exclusion of words.

Professional Negligence

Virtually every case of rectification of a professionally drafted Will involves a negligent act by the solicitor. If the mistake is due to a negligent act by the solicitor, I would expect the solicitor to help put things right by offering to deal with the rectification free of charge. That said, if the solicitor refuses to engage, beneficiaries who are adversely affected by the mistake may wish to seek to recover their costs of the application as damages from the solicitors in a professional negligence claim.