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Where a person puts in place a will, a lot of the time it may seem like quite a simple process. However, there are several problems that can occur when making a will, including:
- Not executing a will correctly
- Amending a will by hand after it has been executed
The will not following the intentions of the testator
As such, regardless of the simplicity of your instructions, we would always recommend taking professional advice.
The solicitors at JMW are experts in bringing claims to rectify wills and dealing with the resulting fallout professionally and sensitively.
To speak to a solicitor about will rectification, get in touch today by calling 0345 872 6666. Alternatively, fill in our online enquiry form and a member of the team will be in touch.
Errors in the Will Drafting Process
There are, however, occasions where even taking professional advice does not prevent a problem from occurring with a will. The case of Marley v Rawlings (2014) centred around a situation where a solicitor accidentally provided a husband and wife with the other’s will to sign and the error was not discovered until the death of the surviving spouse. The Supreme Court allowed the wills to stand as if they had been executed correctly, on the basis that this was a clerical error by the solicitor.
Where part of a will has been drafted and there is a mistake or omission and the court is satisfied as to what the intention of the person making the will was when looking at the will as a whole, the court may take action to correct such a mistake.
Where a person drafting a will does not understand the instructions given to them it is also possible to make an application to the court to rectify a will. This lack of understanding needs to be by someone other than the person giving instructions for the will, so if a person drafts a ‘home made’ will themselves and makes an error, a person bringing a claim cannot succeed at court using the argument that the testator failed to understand instructions.
Where a person wishes to change their will after it has been executed this should be done by way of a new will or a codicil to their existing will. If a person has made handwritten amendments to their will after its execution then, unless the document is re-executed as a will, those changes will have no effect. If you are looking to change the contents of your will then please contact our Wills, Trusts and Estate Planning team.
Wills Lost or Destroyed
Unfortunately, sometimes wills go missing, are destroyed or become damaged to the extent that it is exceptionally difficult or impossible to interpret the contents.
Where a will is known to have been in the possession of the testator but cannot be found, it will normally be presumed that the will has been destroyed by them with the intention that the contents of the will should not apply on their death.
However, it is possible to provide evidence to a court to rebut this presumption. In order for the court to accept such a position, a person seeking to put forward that there was a valid will at death would need to prove:
- That the will was duly executed
- Who had possession of the will at the testator’s death
- Where the will was in the possession of the testator that it was not, knowingly, revoked by them, or that it was not the testator’s intention to revoke it
- The contents of the will
An example of when the testator was in possession of the will but it was not knowingly revoked by them might be where the person making the will had lost mental capacity and destroyed the will without knowing or understanding what it was, or where the document was destroyed in a fire.
In situations where the will was in the possession of another party at death, for example, a solicitor or family member, and the document has been lost or destroyed accidentally, or substantially damaged, it may be possible to put forward a copy or draft of the will to the court as evidence of its contents.
There is an error in the will. Can I fix this?
This will depend on the circumstances in which the error occurred. If the will was drafted by a solicitor and you believe that the deceased’s will does not reflect their instructions due to solicitor error, it may be possible to bring an application to rectify the will.
Where a person has drafted their will without the assistance of a solicitor, an application to rectify the will is not available.
Why Choose JMW?
Our solicitors have helped to rectify wills disputes and we have an excellent track record in helping people to prove the existence of a will that has been lost. We can work under various funding arrangements, including private funding, conditional fee agreements and third-party loans. We will work alongside you to work out which arrangement if the right fit.