Rectifying mistakes in Wills

 

Provided that the testator has mental capacity, they have 2 options when it comes to rectifying mistakes in their Will: 

 

1. Add a codicil – This is a document which is read as an appendix to the Will and adds valid alterations to an existing Will. There is no restriction on the type of amendments that can be made, or how many codicils can be added to the Will. However, it may be difficult to interpret a Will with many codicils and it is advisable for testators to refrain from adding multiple complex codicils to their Will. 

 

2. Write a new Will – Testators can make a new Will as many times as they wish during their lifetime, as long as they have the sufficient mental capacity, as any previous Wills are automatically revoked upon the signing of a new one. The preparation of a new Will is highly recommended where a testator wishes to make substantial changes to their existing Will. Many legal professionals charge at a reduced rate where the testator is only making small amendments or fixing a mistake, such as a spelling mistake in a name or address. 

 

If a testator does not have the mental capacity to add a codicil or put in place a new Will, then in order to rectify a mistake, an application would have to be made to the Court of Protection to create a statutory Will. These applications can only be made by the following and can incur significant costs: 

 

• A deputy 

• An attorney acting under a Lasting or Enduring Power of Attorney 

• A beneficiary of the estate 

• A person that the testator may be expected to provide for. 

 

 

It is more complex and costly to rectify a mistake found in a testator’s Will after their death, though this does not mean that they cannot be fixed. There are 3 ways to fix an error discovered after the testator’s death: 

 

1. Variation – A Deed of Variation enables beneficiaries to rectify a mistake in a Will. All beneficiaries must consent to the variation, and the deed must be made in writing and signed by all parties involved. 

If the variation affects the amount of Inheritance Tax or Capital Gains Tax payable by the estate then the executor must also sign the document. 

A deed of variation must be done within 2 years of the testator’s death to be effective for inheritance tax and capital gains tax purposes. Any variation made after this time cannot be read back to the Will for tax purposes. 

 

2. Rectification – Under section 20 of the Administration of Justice Act 1982, it may be possible to make an application to rectify a mistake due to administrative error or a failure to understand the testator’s intentions. 

An application must be made within 6 months of the grant of representation being granted and the court will consider the following points: 

 

• What the testator’s intentions were 

• Whether the Will fails to fulfil those intentions 

• Whether the Will is drafted as is, due to an administrative error or a failure by the practitioner to understand the testator’s wishes. 

 

3. Construction – If the intention of a Will is unclear due to an error or poor drafting, the court can intervene to establish what the testator’s intentions were by considering the meaning of the relevant words in relation to: 

 

• Their natural and ordinary meaning 

• The overall purpose of the document 

• 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. 

 

The provisions of section 21 Administration of Justice Act 1982 should be considered in such applications, as this applies where: 

 

• Any part of the Will is meaningless 

• Any part of the language used by the Will is ambiguous 

• Any evidence (other than evidence of the testator’s intention) demonstrates that the language in light of the surrounding circumstances is ambiguous. 

 

 

At Avery Walters our team of specialists can provide advice about writing Wills, reviewing existing Wills, making changes, varying estates and more.