Correcting Mistakes In Wills

A Will provides someone with the reassurance and knowledge that their estate will be distributed as they wish once they pass away. 

Ensuring that you fully understand your client’s wishes is paramount when it comes to drafting their Will.  

Client’s may assume a word means one thing when in fact legally, it can mean something completely different. This is where mistakes can happen, and potential problems can arise further down the line. 

When we talk about mistakes in Wills, we define a mistake as a ‘false belief or erroneous assumption’.  

In the case of Pitt v Holt [2013] 2 AC 108,150 the following statement regarding a mistake was made: 

“Forgetfulness, inadvertence or ignorance is not, as such, a mistake, but it can lead to a false assumption which the law will recognise as a mistake.” 

When it comes to Will writing there are three types of mistake that can be made. These are: 

• Mistakes to meaning 
• Mistakes to content 

• Mistakes to motive 

We’ll take a look at these types of errors more closely and see how we can rectify them. 

Content Errors 

A content error is classified as: an accidental inclusion or omission of a word or term from a Will. 

Meaning Errors 

A meaning error is classified as: where a word or term is deliberately included, but its meaning misunderstood. 

Motivational Errors 

A motivational error is classified as: where a term deliberately included and meaning is understood, but a false belief as to its effect. 

Fixing errors in Wills isn’t always a straightforward process. There are different types of remedy that can be used to ‘fix’ the Will and ensure the testator’s wishes are carried through. 

Construction 

The executor will need to ascertain what the Will means, as this can be different from what it says. Construction can be done by a solicitor, and doesn’t require a court order. 

In the case of Marley V Rawlings [2015] AC 129, [19] construction took a contextual approach. The following was said: 

“[Ascertain what the Will means in light of:] (a) the natural and ordinary meaning of those words, (b) the overall purpose of the document, (c) any other provisions of the document, (d) the facts known or assumed by the parties at the time that the document was executed, and (e) common sense, ignoring subjective evidence of any party’s intentions…” 

Rectification 

In order to fix mistakes in Wills using rectification, a court order must be obtained. The time limit on this is 6 months.  

Rectification differs from construction, as it’s not designed to ascertain the meaning of the Will, but change it so it reflects the Testator’s true intentions. 

In the case of Pitt v Holt [2013] 2 AC 108,159: 

“Rectification is a closely guarded remedy, strictly limited to some clearly-established disparity between the words of a legal document, and the intentions of the parties to it.” 

Variation 

Variation has to be submitted within two years of the testator passing away and sees dispositions in the deceased’s estate being re-arranged. This can be to redirect benefits to other members of the family who’s need is greater for inheritance tax saving. 

Variation requires all beneficiaries of the Will to agree to the changes. 

Content Errors 

An example of a content error is: 

“A instructs a Will writer to draft a Will which includes the gift of 10 Albert Square to B. 

“The final draft includes a gift of 10 Albert Avenue to C. 

“A fails to notice the error and executes the will.” 

How can this mistake be fixed? 

This can be corrected by construction, as the executor would/should be able to ascertain what the testator wanted. If the estate doesn’t include 10 Albert Avenue, but does include 10 Albert Square, that can easily be fixed. 

With regards to who the gift is made to, rectification would have to be applied here, to reflect the true wishes of the testator. 

Meaning Errors 

An example of this would be: 

“A leaves their estate to be divided between their ‘issue’ 

“A mistakenly believes that the word ‘issue’ includes step-children. 

How can this mistake be fixed? 

This error can be fixed by construction or rectification as the meaning of the Will differs as to what it says. 

Motivational Errors 

An example of this would be:  

“A’s Will leaves his house to his wife and farm to his son, believing that the farm will benefit from agricultural property relief (APR). The farm does not have APR, and there is an unforeseen inheritance tax (IHT) charge.” 

How can this mistake be fixed? 

Motivational errors can only be remedied by variation.