It can be particularly distressing after the death of a loved one to find that although they made a will to ensure that their nearest and dearest would inherit their estate, the will contains an error which means that it does not divide the estate as the testator intended.
If you find yourself in this situation, there are a number of potential solutions which may resolve the issue.
Construction and Rectification
It is possible to make an application to court to construe or rectify the will. An application to construe the will involves identifying ambiguous wording and using the testator’s known intentions to interpret the will. A will can be rectified by the court where it does not carry out the testator’s intentions due to a clerical error or a failure to understand the testator’s instructions. A rectification claim needs to be lodged at court within 6 months of the date of the grant of probate, otherwise the court’s permission is required.
Deed of variation
If all of the people affected by the mistake agree on a course of action, this can be implemented by a deed of variation, also called a deed of family arrangement. A deed of variation complying with certain formalities will be read back as if it formed part of the will for tax purposes but the downside is that for other purposes, notably assessment of state benefits or social care costs, it may be considered a deprivation of assets.
Professional negligence
Where the will was drafted by a professional, it may be possible to seek compensation from the will drafter by proving that their work fell below the standard of care expected of a reasonable professional to act with reasonable care and skill. These claims are usually dealt with by the will drafter’s professional indemnity insurers which may continue to provide cover even if the firm is no longer in business. The claim would be for any losses arising as a result of the error.
As part of the claim, the individual will have to establish a duty of care on the part of the will writer, either to the individual or to the testator’s estate, and prove on the balance of probabilities that the action or omission fell below the required standard. They will then need to show that if the error had not occurred, the loss would have been avoided and that the loss was a foreseeable consequence of the error.
Avoiding the error
Ultimately, none of these solutions is ideal and will likely result in a compromise outcome or require the beneficiaries to spend time and money reaching an appropriate solution. The best way to avoid such a situation is to instruct a solicitor who specialises in will preparation at a reputable firm which will have additional measures in place to ensure mistakes are avoided. At WBW Solicitors, our wills are always checked by a senior private client lawyer and our experts have hundreds of years’ experience in drafting wills tailored to individuals’ situations.
How we can help
If you have concerns regarding an error in your will, WBW can advise you and work on your behalf to resolve the error or secure suitable compensation. Send us an email at cp@wbw.co.uk or call our client co-ordinator on 01626 202384.
WBW Solicitors has offices in Axminster, Bovey Tracey, Brixham, Exeter, Exmouth, Honiton, Launceston, Newton Abbot, Paignton, Seaton, Sidmouth, and Torquay.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
