Mistakes in Wills and What Can Be Done About Them

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss mistakes in Wills and what can be done about them

What can be done to correct mistakes in Wills

Mistakes pre death

Mistakes before the Will writer (“testator”) has died can be corrected by two simple means:

1. Firstly a new Will can be prepared; or
2. Secondly a “Codicil”, which is, if you like, an addendum to the Will which simply adjusts some but not all of the contents of the Will. However, to take effect, it must be executed like a Will (in other words signed by the testator in front of two witnesses).

A problem can arise when the testator loses capacity, prior to the mistake in the Will being discovered. In that instance it may not be possible to correct the error, which could spawn a will dispute, will contest or even a negligence claim against the Solicitors who prepared the Will, following the testator’s death (see below).

We deal with capacity issues in relation to contested and disputed Wills in numerous previous blogs, but see for example: https://www.willclaim.com/contesting-a-will-with-willclaim-com-understanding-capacity-to-make-a-will/

There are certain circumstances prior to the testator’s death where notwithstanding his/her loss of legal testamentary capacity, a new Will can be made. The Court of Protection can authorise a “Statutory Will” to be made which is in the testator’s “best interests”. Again, we have discussed this before, see: https://www.willclaim.com/challenging-statutory-will/

The Act under which authority is provided for this to be done is the Mental Capacity Act 2015 at section 18(1)(i): https://www.legislation.gov.uk/ukpga/2005/9/section/18

Occasionally, these can be overturned where the testator’s best interest has not been well represented. For instance in ADS v DSM 2017 EWCOP 8: https://www.bailii.org/ew/cases/EWCOP/2017/8.html

The following is a useful snapshot of Mr Justice Charles’ Judgment: The approach to be taken by the Court (and the parties) to the making of a statutory will

9. The COP judge refers to the main authorities namely In re P (Statutory Will) [2010] Ch 33 (in which Lewison J refers with approval to In re S (Protected Persons) [2009] WTLR 315 and [2010] 1 WLR 1082), In re M (Statutory Will) [2011] 1 WLR 344 and Re G(TJ) [2010] 3005 (Fam) in which these cases were cited from and applied.
   
10. In P, Lewison J at paragraph 39 refers to the need for the decision maker after he has gone through the steps required by the statute to form a value judgment giving effect to the paramount statutory instruction that any decision must be in P’s best interests. This is endorsed by Munby J in M and applied by Morgan J in G(TJ). It also accords with my approach in a very different area in Briggs v Briggs [2016] EWCOP 53 and so in my judgment with the approach taken by the Supreme Court in Aintree University Hospitals NHS Trust v James [2014] AC 509. At paragraphs 57 and 58 of Briggs I said:
    
    “57. Pausing there, it is clear and important to stress that a conclusion on what P would have done is not determinative of the MCA best interests test and so, by stating that the MCA enables the court to do for the patient what he could do for himself if of full capacity, the Supreme Court is not saying that a conclusion on what the patient would have done is decisive. The test is not a “what P would have done test”, it is a best interests test and so a test that requires the decision maker to perform a weighing or balancing exercise between a range of divergent and competing factors.
    
11. In that exercise the force, clarity or certainty of conclusions that found competing factors will affect the weight to be given to them and that weighing exercise is not a linear or binary exercise.”
    I went on to also approve paragraphs 55 and 56 of the judgment of HHJ Marshall in S.
    
12. My reference to the weighing exercise not being linear or binary accords with the comments on the approach taken by Lewison J in P (in which he broadly agrees with the approach taken by HHJ Marshall in S) set out by Munby J in M at paragraphs 34 to 38 of his judgment. He emphasises the fact and issue sensitive nature of the approach that a decision maker applying the best interests test set by the MCA must take. As he points out, and as the cases show:
    
    i) in some cases, P’s wishes and feelings when he or she had capacity can have great weight in determining what would be in P’s best interests, and
    ii) in other cases, P’s expressed wishes and feelings after he or she has lost capacity to make the relevant decision can have great weight.
    
13. Cases in which the reaction of P to a proposed solution are likely to affect its successful implementation are examples of situations in which P’s wishes and feelings (and so preferences) after he or she has lost capacity may well carry great weight.
    
14. However, the approach taken in the cases of P, and S and confirmed in M (with the comments I have referred to) means that an approach to the weight to be given to expressions of the wishes and feelings of P that fails to take account of P’s capacity when they were made and so of P’s ability to take account of relevant past and present circumstances would not comply with the approach dictated by the MCA.
    
15. When a decision falls to be made under the MCA for P, by definition, P does not have capacity to weigh all the factors that are relevant to that decision. This inability is a circumstance that must be taken into account in determining the weight, and so respective weight, to be given to P’s wishes and feelings expressed before and after P loses the relevant capacity.
    
16. So, in my judgment an approach to the respective weight to be given to expressions of P’s testamentary wishes that failed to take account of P’s capacity when they were made and so, amongst other things:

Mistakes post death

It is generally more difficult and expensive to correct mistakes post death. The following is a summary of the steps which can be taken.

Variation

If the beneficiaries all agree, then a Deed of Variation can be drawn up to counter the mistake which is then executed by all of the beneficiaries and becomes a part of the deceased’s testamentary papers. The Executor(s) must also sign. In general the Deed of Variation which fixes the mistake must be done within two years of the death to be effective for Inheritance Tax and Capital Gains Tax purposes.

Rectification

We touched on this in a previous blog. See:

https://www.willclaim.com/contesting-a-will-with-willclaim-com-no-win-no-fee-specialists-what-can-be-done-about-a-poorly-drawn-up-will/

Where a mistake has been caused by a clerical error and/or a failure to understand the testator’s instructions then it is possible to correct the mistake via an application for rectification under section 20 of the Administration of Justice Act 1982: https://www.legislation.gov.uk/ukpga/1982/53/section/20

The application should be made within 6 months of the date of the Grant of Probate otherwise permission is required to proceed out of time.

Construction claim

If in consequence of the mistake in the Will:

• Any part of it is meaningless
• The language used in any part of the Will is ambiguous
• And evidence (other than evidence of the testator’s intention) reveals that the language used in any part of the Will is ambiguous in the light of the surrounding circumstances, then extrinsic evidence, to include evidence of the testator’s intention can be used by the Court to assist in the interpretation of the Will.

Section 21 of the Administration of Justice Act 1982 applies: https://www.legislation.gov.uk/ukpga/1982/53/section/21

Suing the Solicitor who prepared the Will with mistakes

This is a possibility, but where all of the other options have been exhausted
If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

We provide details about our no win no fee arrangements at https://www.willclaim.com/no-win-no-fee/.