Errors in professionally drafted Wills: what you can do about them

The court’s power to rectify Wills

Under Section 20 of the Administration of Justice Act 1982, the Court has the authority to rectify a Will that fails to carry out the testator’s intentions. This may occur due to clerical errors by the drafter or a failure to properly understand the testator’s instructions.

Professional negligence in Will drafting

An incorrectly drafted Will by a professional can also give rise to claims of professional negligence. A notable case, Ivey v Lythgoe, concerned the validity and rectification of two Wills made by Mr Ivey. The probate dispute and the negligence claim were consolidated due to factual overlap, highlighting that errors in drafting may lead to findings of negligence.

Mediation and Alternative Dispute Resolution

In Ivey v Lythgoe, the Court directed the company that drafted the Wills to attend mediation. This reflects the Courts’ encouragement, and sometimes requirement, of Alternative Dispute Resolution (ADR), such as mediation, to resolve disputes outside of Court. Interestingly, the drafting company, Trust Inheritance Limited, was not a firm of solicitors, yet the Court ordered their participation due to the seriousness of the error.

Costs and liability for incorrectly drafted Wills

Other cases have shown that parties who incorrectly draft Wills may be joined to proceedings, particularly in relation to costs. If a Will is found to be invalid or not representative of the testator’s wishes, the drafter may be liable for Court and rectification costs. Famous examples include cases where spouses accidentally signed each other’s Wills, which reached the Supreme Court. However, this is not a blanket rule—Judges retain wide discretion, and each case is assessed individually.

Seeking advice on Will disputes

If you have concerns about the Will of a loved one, there are different options available to you. Please contact our Dispute Resolution team for more information on 01202 525333.