DATE PUBLISHED: 05 Jan 2017 LAST UPDATED: 18 May 2022

Challenging a Will: Rectification

Sometimes a Will is drafted in a way which does not give effect to a testator’s intentions. In such cases, it is possible to apply to rectify the Will.

In deciding whether to issue such a claim, the Court must consider three questions:

  1. What were the testator’s intentions;
  2. Does the Will fail to carry out the testator’s intentions; and
  3. Is this failure as a result of (i) a clerical error or (ii) a failure on the part of the Will drafter to understand the testator’s instructions.

Evidence will need to be produced to demonstrate the testator’s true intentions and/or to demonstrate the nature of the clerical error.

Whether a Will can be rectified will depend on the circumstances of the case and the evidence available. Case law has developed this area of law, most notably by the Supreme Court’s decision in Marley v Rawlings and another [2014] UKSC 2. The case involved a claim to rectify Mr Marley’s Will due to Mr Marley and his wife signing each other’s Wills in error, with the mistake only being noticed after they had both died. The Supreme Court held that in the particular set of circumstances, it was possible to rectify the entire contents of a person’s Will to give effect to their true intentions.

A claim to rectify the Will must be made within 6 months of the date of the Grant. Claims after this time can be made, but will only proceed if the Court grants permission. It is therefore vital to consider any potential claim quickly. Our lawyers are specialists in contentious trust and probate and can advise you on whether there is a viable claim for rectification.

If you wish to discuss any of the issues arising from this blog please feel free to contact me at victoria.riddleston@ellisjones.co.uk or 01202 057768.

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