Though it is not extremely common, it does happen that Wills,
even those prepared professionally, contain mistakes or errors.
When those are discovered only after the testator passed away, this
can cause serious problems to expectant beneficiaries. There
are two central issues with respect to errors or mistakes in Will
drafting. Firstly, can they be corrected? Secondly,
what should have been expected from the lawyer or other person who
was drafting the Will and can there be a claim in professional
negligence against them?
If a mistake in a Will has an adverse impact, then an
application to the court can be made to rectify the Will. The
application must be made within six months of probate being
granted. The application is made under the Administration of
Justice Act 1982. A Will can be rectified if the court is satisfied
that the mistake or error is a result of a clerical error, or a
failure to understand the instructions of the testator by the
person who drafted the Will.
Historically, the majority of clerical errors have involved
typographical mistakes. This changed however with the ruling
in the case of Marley v Rawlins. Here,
the Wills of a husband and wife had identical terms.
However, due to an error of the solicitor, the husband signed the
wife's Will and vice versa. Normally , as a document not
signed by the testator, the Will, strictly speaking, could not be a
valid Will. It could therefore not have been
rectified. The Supreme Court disagreed however and held that
the mistake with signatures could be considered a clerical
error and the Wills were capable of rectification. The court
laid out a very wide definition of a clerical error, which now
includes "office work of a relatively routine nature, such as
preparing, filing, sending, or organising the execution of a
In Brooke v Purton a solicitor included a
standard clause for the deceased's wife, despite the fact
that the testator was not married. Normally the clause would
have had the effect of completely undermining the intention of the
testator. Though the court ultimately decided this case on
the basis of construction to achieve a just result, it confirmed
that rectification could also have been used under the
Administration of Justice Act 1982. It has therefore potentially
widened the scope of clerical error even further.
If a rectification is available, it is generally the best option
for the beneficiaries who are adversely affected. If a Will
is capable of being rectified, the beneficiaries suffer no
loss and hence have no right to a further claim against the
professional who made the mistake. If rectification is however
not available, there may be grounds to bring a professional
negligence claim against the advisers or drafters.
Parties can expect that solicitors will draft Wills within a
reasonable period of time and where there is a death bed case, that
they will do so with utmost urgency. Solicitors are not
however under a duty to chase clients who fail to execute
Wills. As long as a solicitor provides clear instructions on
how a Will must be executed, he needs not make sure that the
testator follows those instructions unless the Will is then
returned to the solicitor for safe keeping. The solicitor or
adviser is under a duty to advise the testator properly on the
issues pertinent to the Will, including the effect of
marriage. He is however not under a duty to make sure
that the advice is followed.
If you have any questions, regarding mistakes in Wills,
the possibilities of their rectification or chances of a claim
against the advisers who contributed to the mistake, please contact
me or another member of my team.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Increasingly, family lawyers are instructed by parents wishing to take their child abroad or, conversely, the other parent who objects to their child being taken abroad for fear of the child not being returned.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).