Solicitors specialising in contentious probate matters are often faced with disappointed beneficiaries who comment after seeing a will of a loved one that “those cannot be the wishes of the deceased”.
It is well established law that “…an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases or, if he chooses to do so to leave that disposition to be regulated by the laws of intestate succession”. This may result in a bizarre disposition but if it is in accordance with the deceased’s wishes, a disappointed beneficiary may have difficulties in contesting the contents of the will.
If, however, a will does not give effect to a testator’s true intentions due to the act of a solicitor who drafted the will and as a consequence the disappointed beneficiary has been omitted from the will or has received a reduced legacy, it may be possible to bring a claim for rectification and/or a professional negligence claim..
Grounds for rectification
Section 20 of the Administration of Justice Act 1982 provides the grounds for rectifying a will, namely:
“If a court is satisfied that a will is so expressed that it fails to carry out the testators intentions, in consequence that
- of a clerical error; or
- of a failure to understand his intentions,
it may be ordered that the Will shall be rectified so as to carry out his intentions”.
“Clerical error” was defined in the case of Wordingham v Role Exchange Trust Company  as meaning “an error made in the process of recording the intended words of the testator and the drafting or transcription of his will. That meaning is to be contrasted with an error made in carrying his intentions into effect by the drafter’s choice of words and with a mistake in choice of words because of a failure to understand the testator’s intentions”.
Mistake through the draftsman failure to consider a provision in the will or a failure to understand its legal effect, could be classed as a clerical error. However, if a draftsman applied his mind to the significant effect of the offending words but through a misunderstanding of the law does not affect the testator’s intentions, this will not amount to a “clerical error”.
In practice, it is often a fine line between whether a draftsman has made an error whilst recording an instruction of the testator or whether an error has been made in carrying the testator’s instructions into effect.
Failure to understand instructions
If the draftsman applied his mind to the meaning and effect of the words but simply achieved the wrong result due to misunderstanding the testator, the disappointed beneficiary will only succeed with a claim to rectify the will if he is able to show the following:
- what the testators intentions were with regard to the dispositions in respect of which rectification is sort;
- that the will fails to reflect those intentions;
- what were the testators intentions;
- that the draftsman misunderstood those instructions; and
- that the failure of the will to reflect the testator’s intentions was due to a failure on the part of the draftsman to understand those instructions.
From the outset it will be necessary to obtain a copy of the draftsman’s file together with the draftsman’s comments as to whether the will accords with the testators wishes. If it is apparent from the file that the draftsman did understand the testator’s instructions but simply misapplied the law, the disappointed beneficiary will have a claim in professional negligence and not rectification of the will.
Burden of proof
The case of Re Segelman  clearly established that a court would not rectify a will unless there was evidence of “such weight” that the will does not reflect the testators intentions.
Time limit for seeking rectification
An application for rectification must be brought within 6 months of the date when a grant of probate was first obtained. Any claim brought after this period will require leave to apply out of time. The court will take into account the reasons for the delay in seeking rectification and in particular, whether any prejudice has been caused by the delay and whether the proceedings were pursued expeditiously.
Rectification of negligence claims
Virtually every case of rectification of a professionally drafted will involves an original negligent act by the draftsman. It is well established law that a disappointed beneficiary can bring a claim for professional negligence against the draftsman of the will. It is equally well established that a disappointed beneficiary is under a duty to mitigate his loss which he may do so by bringing an application for rectification. This duty does not require a claimant to embark on speculative litigation as a “plaintiff need not take the risk of starting an uncertain litigation against a third party.”
It may be more difficult for a claim to succeed with a rectification claim than a negligence claim if the solicitor disputes the error in the will and there is no clear evidence of an error.