Rectification of a Will

It can be complex and costly to rectify a mistake found in a testator’s Will after their death, though this does not mean that the error 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.

If you wish to discuss any of the above methods to correct or rectify a Will then please don’t hesitate to contact our expert Wills Trusts and Probate team on 0161 926 1538 or wtp@mlplaw.co.uk