Can errors in wills be corrected after the testator has died? Robert Horsey and Sasha Wicks, of Ashfords, explain the circumstances in which this is possible.

Rectification, in its simplest form, is a means by which a defect in a document can be corrected. The document is amended, and it will continue to take effect, as if it was originally in the corrected form.

This equitable remedy is not limited to correcting errors in contractual documents in the commercial world – it can include correcting an error in a will.

There are many ways in which a will could contain a defect. Action should always be considered with a view to correcting the defect as soon as possible after it’s discovered.

If a defect is discovered prior to the death of the testator, and while the testator still has testamentary capacity, this should be a relatively straightforward exercise, as a new will or a codicil can be made to correct the error.

If the error is only identified after the testator has died, it may still be possible to rectify the error if the will, as executed, fails to carry out the testator's intention due to either:

• a clerical error
• a failure to understand the testator's instructions

The application should be made within six months of taking out a grant of representation, s20 Administration of Justice Act 1982. If an application is not made within this initial deadline, it may be possible to pursue a claim, but the applicant must seek the permission of the court to do so out of time.

It should be noted that rectification is a discretionary remedy, and the court will only exercise its discretion so as to give effect to the intentions of the testator.

In determining whether a will should be rectified, the court should therefore consider:

• What the testator's intentions were, in relation to the disposition that is the subject of the rectification.
• Whether the will, as drafted, fails to carry out those intentions.
• Whether the will is expressed as it is due to either a clerical error, or a failure on the part of the draftsperson to understand those instructions.

What constitutes clerical error?

The words ‘clerical error’ don’t have a precise, well-established or technical meaning, so they must be interpreted in their context.

The case of Bell v Georgiou 2002 provides that such an error ‘occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert’.

The potentially significant scope of the concept of a clerical error was demonstrated in the case of Marley v Rawlings 2014. In this case, an error by a solicitor, which resulted in a husband signing a will that had been drafted for his wife (and the wife signing her husband's will), was held to be a clerical error, and the application for rectification was successful.

A further example of a successful case in which the court ordered the rectification of a will due to a clerical error in its drafting is Joshi v Mahida 2013. The inclusion of the words ‘one-half of my share’ in one of the clauses of the will, which was inconsistent with the other, was held to be a clerical error (and so was removed) because there was clear evidence that the testator did not want his wife to inherit his half-share of the business, and that this asset was intended for his brother and nephews. The will, as drafted, failed to express his intention in that respect.

The case of Kell v Jones & 18 Ors 2012 is a clear reminder that the court will not direct that a will should be rectified under s20 AJA 1982 if a failure to carry out a testator's intentions is not due to a clerical error, nor the will drafter's failure to understand their instructions. The court found that the draftsperson chose wording in the mistaken belief that it achieved what the testatrix wanted. As a consequence, four charities benefited from the testatrix's residue estate, even though it had been her intention for them to receive specific money legacies only, and not part of her residuary estate.

So it’s clear that in order to persuade the court to exercise its discretion, there must be convincing evidence of the testator's intention.

If there has been a failure to carry out the testator's intentions, it could also be appropriate to pursue a negligence claim against the will drafter, but it is generally accepted that this should be done after conclusion of a claim for rectification.

Rectification is an equitable remedy, so all of the requirements of equitable claims will apply to a rectification application. The six-month statutory time constraint is just one of the factors to be considered.

About the author

Robert Horsey is a partner and Sasha Wicks a chartered legal executive at Ashfords, @Ashfords_Law.