2020-04-30
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Contesting a will which does not include the intentions of the deceased

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Posted by Martin Oliver on 01 April 2015

Martin Oliver Partner

Following the death of a loved one, if it transpires that their wishes were not correctly drafted in a Will, it may be possible to pursue a claim seeking confirmation from the Court that the Deceased’s wishes should be implemented. Such claims for contesting a will include a declaration as regards the true construction of a Will or a claim for rectification, both of which are detailed below.

Construction

Several recent cases, including Marley -v- Rawlings [2014] 1A ER 807 and Brooke -v- Purton [2014] EWHC 547(CH) have both looked at circumstances where instructions given to a solicitor to draft a Will have not then been implemented in the wording of the Will. Where there is clear evidence (i.e. a solicitor’s attendance note) that a mistake has been made, a Court can make a finding that the construction of a Will should be in the terms of the instructions provided by the Deceased. When interpreting the meaning of a Will, the Court is concerned to find the intention of the Deceased and it does this by identifying “the meaning of the relevant words”. The Court will address issues such as:

  1. the natural and order of the meaning of the words of the Will;
  2. The overall purpose of the Will;
  3. Any other clauses within the Will;
  4. The facts known or assumed by the Deceased and the solicitor at the time the Will was executed; and
  5. Common sense.

In the case of Brooke –v- Purton [2014] a wealthy individual who had five children from three previous relationships left an Estate worth £6.9m to his five children and his partner. At the time of executing the Will, the Deceased had concerns as to whether his children (some of which were very young) would be able to handle such monies. Accordingly, the Deceased’s intentions were to set up a trust, in a tax saving manner and to give powers to the trustees to distribute the monies equally, as and when the trustees thought it was appropriate. Unfortunately, the solicitor who drafted the Will, simply used a precedent Will which was not appropriate to the circumstances of the case. As a consequence, the assets of the Deceased did not enter the discretionary trust and accordingly everything would have been distributed immediately which was not what the Deceased had intended. Accordingly, the executors and trustees of the Will applied to the Court for a determination that the Will was not in accordance with the instructions nor the intentions of the Deceased. The solicitor who drafted the Will, accepted in Court that she had simply used a precedent Will which was not appropriate and the Deceased’s intentions had not truly been incorporated within the Will. In those circumstances, the Judge was able to interpret the Will without adding any further clauses. 

Rectification

If it is necessary to insert/delete clauses within a Will to affect the true intention of the Deceased, simply applying for a construction of the Will may not be appropriate.  In such circumstances the correct approach is to pursue a claim for rectification. 

The relevant law relating to rectification is detailed in Section 20 of the Administration of Justice Act 1982 which states:

20 Rectification

  1. If a Court is satisfied that a Will is so expressed that it fails to carry out the testator’s intentions, in consequence –
  • Of a clerical error; or
  • Of a failure to understand his instructions
    It may order that the Will should be rectified so as to carry out his intentions”.

If the above has occurred, there is no limit to the amount of amendments a Judge can impose upon the wording of the Will, to implement the real intention of the Deceased. 

Please note the above does not deal with situations where the Deceased has been subjected to coercion (i.e. undue influence), a fraud has taken place or the Deceased simply did not have the necessary testamentary capacity to make a Will.  In those circumstances, alternative claims may be appropriate.

About the author

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts.

Martin Oliver

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts.

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