How do you fix a mistake in a will? Adam Sym of Stephensons looks at the options available when correcting errors in the wills of testators, both living and deceased.

How do I correct a mistake in a will?

Wills are usually the most important document we leave behind when we die. But while practitioners spend a lot of time ensuring that a will matches their client’s final wishes, it is inevitable that mistakes do occasionally happen. Some errors are found in a person’s lifetime, whereas some are only discovered after a testator dies. So, what can be done in both situations?

How do I correct a mistake in the will of someone living?

Fixing mistakes in the will of a testator who is alive is simple if they have the testamentary capacity to make changes to their will. In this situation, a testator has two options:

• add a codicil to the original will
• write a new will

What is a codicil?

A codicil is a document that is read as an appendix to a will. Codicils are generally inexpensive documents to have professionally prepared and are a perfectly valid way to change a testator’s will. There is no legal restriction to the type of changes that can be made by a codicil, nor the number of codicils that can be made. However, a will with many codicils can be more difficult to interpret and it is common for practitioners to advise against using a codicil to alter the distribution of assets of significant value or to alter the provisions of a complex will trust.

How many wills can you write?

Testators are free to make a new will as many times as they wish. Straightforward wills are generally inexpensive documents to have professionally prepared, though are typically more expensive than a codicil. It is however the appropriate way forward if there are significant changes to be made to a previous will, or several codicils have already been made.

How do I correct a mistake in the will of someone who does not have testamentary capacity?

If a testator lacks the mental capacity to make a codicil or a new will, then the position is more complex. To correct a mistake in a testator’s will in their lifetime in this scenario, an application would have to be made to the Court of Protection for a statutory will to be made. These applications are costly and time consuming. Such an application can only be made by:

• a testator’s deputy
• an attorney under an ‘enduring power of attorney’ (EPA) or ‘lasting power of attorney’ (LPA)
• a person who would be a beneficiary of the testator’s estate (whether through an existing will or the intestacy rules)
• a person for whom the testator might be expected to provide for if they had the mental capacity to do so

If the intended applicant doesn’t fall into one of these categories, they would have to seek the court’s permission before making the application. In practice there are some scenarios, especially where all the beneficiaries of the existing will agree as to what the correct provision should be, where it may prove easier to fix the mistake after the testator’s death.

How do I correct a mistake in the will of someone who is deceased?

If a mistake is found in a will after a testator’s death, it is generally more complex and expensive to rectify than if found during the testator’s lifetime. That is not to say that they cannot be fixed, however, and there are three main options to consider:

• variation
• rectification
• construction

Variation

Where there is a mistake in a will and the beneficiaries are all agreeable to it being rectified, it may be possible to fix it by way of a ‘variation’ to the contents of the will. This must be done in writing. The document must be signed by the beneficiaries who are prejudiced by the variation and if the variation affects the amount of Inheritance Tax or Capital Gains Tax payable by the estate, it must also be signed by the executor of the estate. However, it is good practice for all beneficiaries and executors to be a party to the variation.

A variation must be done within two years of the testator’s death to be effective for Inheritance Tax and Capital Gains Tax purposes, meaning that the estate will be taxed based on the varied distribution, rather than the original. A variation can be made after the two-year period, but it will not allow for any tax advantages to be utilised. This option is typically the least expensive of the three options available after a testator’s death, but is not always available, as it requires the agreement of the beneficiaries prejudiced by the variation.

Rectification

Where there is a mistake in a will due to either a clerical error or to a failure to understand the testator’s instructions, it may be possible to fix the mistake by way of an application for ‘rectification’ under s20 Administration of Justice Act 1982.

The application must be made within six months of taking out a grant of representation, otherwise the court must first grant permission for the application to be made. It must be noted that the court will only exercise its discretion to give effect to the testator’s intentions. The court will consider the following three points, as set out in Re Segelman [1996] Ch 171:

1. what the testator’s intentions were with regard to the dispositions in respect of which rectification is sought
2. whether the will, as drafted, fails to carry out those intentions
3. whether the will is expressed as it is due to either a clerical error or a failure on the part of the practitioner to understand those instructions

Construction

Where the intention of a will is unclear due to a mistake or poor drafting, the courts may intervene and set out to establish the intentions of the testator. In order to do so, the court should have regard to the factors set out in Marley v Rawlings [2014] UKSC 2; namely to identify the meaning of the relevant words (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions.

It is also relevant to note the provisions of s21 Administration of Justice Act 1982 in such applications, as this applies where:

• any part of the will is meaningless
• the language used in any part of the will is ambiguous on the face of it
• evidence (other than evidence of the testator’s intention) shows that the language used in any part of the will is ambiguous in the light of surrounding circumstances, extrinsic evidence, including evidence of the testator’s intentions, and can be used by the court to assist in the interpretation of the will

Can I make a professional negligence claim against a will writer?

The law has developed over the past couple of centuries to make it easier to correct mistakes in wills. However, court applications can be costly and tricky to navigate without appropriate advice. If a will contains a mistake that cannot be rectified through the methods above, then it may be for the disappointed beneficiary prejudiced by the mistake to consider a professional negligence claim against the will writer. This is, however, considered to be a last resort and such persons would be expected to exhaust their options to fix the mistake in the will to mitigate any loss before pursuing this route.

About the author

Adam Sym is a Probate Executive at Stephensons and specialises in wills, inheritance tax planning, probate and estate administration, lasting powers of attorney, Court of Protection applications, and trusts.

See also

Where should I store my will?

How to write a will

Find out more

Making a will (Gov.uk)

Use or cancel an enduring power of attorney (Gov.uk)

Wills Act 1837 (Legislation)

Administration of Justice Act 1982 (Legislation)

Image: Getty Images

Publication date: 11 December 2019