What happens if there is a mistake in a Will?
A Will is one of the most important documents a person can create in their lifetime. Providing for partners, children and favoured charities, whilst intentionally ignoring others; a Will is designed to create certainty, a statement of intent for when you are no longer around to explain where you want what to go to whom. Unfortunately, if there is an error in the Will all your plans may be prevented from being put into effect.
Common errors in Wills are:
• The Will wasn’t completed with proper signing by the Testator, or witnesses did not sign in the presence of the Testator
• A clause missing from the administrative provisions in the Will
• Failing to account for all the assets available, leaving some property to be dealt with outside of the Will under the Rules of Intestacy
• Failing to make provision for what will happen should a beneficiary die before the Testator
• Not taking proper account of people who are dependent on the Testator and who may later be able to bring a claim against the estate
Unfortunately, errors are generally discovered in a Will once the Testator has passed on, and this can mean that trusts may fail, property can end up with unintended beneficiaries contrary to the Testator’s wishes, or there may be a lack of certainty as to how the estate should be distributed. So what does an Executor or beneficiary face if they have reason to believe a Will contains a mistake?
Challenging mistakes in a Will
Some mistakes made when the Will was created can be fatal in that they mean a Will can be invalid. For instance, if the testator did not have capacity to make a valid Will, or the witnessing and signing of the Will was done incorrectly, or there was fraud or undue influence over the Testator.
But some mistakes can be corrected and the courts do what they can to ensure that the Will in the end will reflect the Testator’s intentions, and becoming increasingly pragmatic in their approach. Signing the wrong Will for instance would previously have caused the Will to be invalid, but in a recent case (Marley v Rawling ) the Supreme Court, overturning decisions in the High Court and Court of Appeal, found that a mirror will (two wills made on the same terms as each other for perhaps a husband and wife) signed by the wrong spouse could be rectified.
There is a limited period in which a claim to sort out an error in a Will can be made. To bring a claim in the Court for rectification of a Will, you have 6 months from the date you obtain a Grant of Probate. But, if you believe the error is a result of the lawyer’s negligence, you may have a claim for professional negligence which you would need to bring within 6 years from the date of the testator’s death.
Contact our Disputes team on 01480 377 377.