A Will can be rectified if, due to a clerical error or a failure to understand the testator’s intentions, the Will is drafted in a way that it fails to meet the testator’s intentions.
The court defines clerical error as “an error made in the process of recording the intended words of the testator and the drafting of his Will”. For example a beneficiary is left £2,000 when the testator intended £20,000.
If this is the case, then the Court can order that a will be rectified (changed) so that it does carry out the testator's instructions.
If you consider that your issue is not a clerical error, but that the professional drafting the Will has not accurately reflected the testators instructions then this may be regarded as professional negligence. If so, click here.
For example, if a testator gave instructions that all of his children were to receive an equal share of his estate but the solicitor only named some of the children, clearly this would be seen as a clerical error. If, however, on the other hand, the draftsman misunderstands the law and how it will be applied, this will not amount to a 'clerical error' but professional negligence.
In practice it can often be difficult to establish whether to pursue a claim for rectification or professional negligence. We will advise you based on the specific facts of your case.
If the draftsman applied his mind to the meaning and effect of the words but simply achieved the wrong result due to misunderstanding the testator, the disappointed beneficiary will only succeed with a claim to rectify the will if he is able to show the following:
- What were the deceased’s intentions for his Will
- Where those intentions differ from the Will
- What were the deceased’s wishes
- The deceased’s instructions were misunderstood by the draftsman
- The reason why the Will does not mirror the deceased’s wishes was due to the instructions being misunderstood
 |
 |
 |
 |
 |
 |
|
