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Rectification and construction - What happens if a Will doesn't make sense?

View profile for Leah Merrifield
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A Will should be drafted so that it is clear and carries out the intentions of the testator (the person making the Will). However, sometimes errors, misunderstandings or poor drafting can mean that a Will fails to carry out the testator’s intentions or can’t be easily interpreted.

If this happens, it is possible to ask the court to assist. These types of applications are known as “rectification” and “construction” claims.

Section 20 of the Administration of Justice Act 1982 allows the court to rectify a Will so that it carries out the testator’s intentions. In order to rectify a Will, the court must be satisfied that the will fails to carry out the testator’s intentions because of:

  1. a clerical error, or
  2. a failure to understand the testator’s instructions.

A clerical error could be a typo or mistake made when the will is produced. Clerical errors can also cover more unusual circumstances, for example a husband and wife being given each other’s Wills to sign rather than their own.

Section 21 of the Administration of Justice Act 1982 allows the court to look at extrinsic evidence to interpret a Will where any part of it is meaningless or ambiguous. Extrinsic evidence will be any evidence of the testator’s intentions apart from the Will itself. The evidence could date from the time that the Will was made, or before or after that. The starting point will usually be the file from the solicitor who prepared the Will.

In the recent case of Re McKay (Deceased), the claimant, Mr Pead, brought a claim for rectification of his stepfather’s Will. Mr McKay’s Will included gifts to various family members and charities, and then divided his residuary estate between the family members and charities.

There were two main issues for the court to consider. Firstly, Mr Pead believed that it had not been his stepfather’s intention to include the charities in the division of the residuary estate, and that he had actually intended it to be split between his family members. Secondly, it was unclear from the drafting whether the residuary estate was to be divided equally, or in another way.

Ultimately, the court was not convinced that the test for rectification was met. There was insufficient evidence to show that Mr McKay had intended to divide his residuary estate just between his family members, and not the charities. The court interpreted the Will as dividing the residuary estate on a pro rata basis (with those who received larger legacies receiving a larger proportion of the residuary estate), rather than equally.

Although the rectification claim was unsuccessful, the court found that it had been reasonable for the claim to be brought. The judge found that there had been “serious shortcomings in the way that the deceased’s instructions were taken and recorded” which had contributed to the claim being brought. Because of this, the court ordered the firm of solicitors who prepared the will to pay 60% of the parties’ costs.

Claims involving rectification and construction can be complex. Our specialist team can advise on how best to approach this type of claim, and whether there may also be a claim in professional negligence against the will draftsman.