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Can a Will Be Amended After Death?

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss whether a Will can be amended after the death of the testator

Can a Will really be amended after the death of the testator?

The answer is yes it can. As we explained in a previous blog a Will can be amended notwithstanding the person who made it has died:

WHAT CAN BE DONE ABOUT A POORLY DRAWN UP WILL? (willclaim.com)

The power to amend Wills in certain circumstances is available under section 20 of the Administration of Justice Act 1982. This says:

20Rectification.

(1)If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence—

(a)of a clerical error; or

(b)of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.

(2)An application for an order under this section shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out.

So as mentioned, it must be brought within 6 months of the Grant of Probate; it is only of assistance where a Will has been incorrectly drafted so that it “fails to carry out the testator’s intentions” but because of:

  1. a clerical error;
  2. a failure to understand his instructions.

How does this interact with “knowledge and approval” and “testamentary capacity”?

Here’s the thing, whilst certain clauses in a Will are difficult for a lay person to understand (for instance the “trust for sale” clause), most ordinary people have some idea about the meaning of clauses within their own Will. For instance, if a Will says “I leave little Jonny £10,000 and my chinese vase” or where it says “I leave my house known as Castle Heights, Sloan Street, Manchester to my Uncle Tommy Smith”. In this context, there is always going to be some interaction in these cases with questions about whether the person making the Will was fully within his/her right mind at the time it was made. Why didn’t she understand she was leaving her house “Castle Heights” to Tommy Smith? It’s pretty obvious what this means.

As mentioned in our previous blogs, for a Will to be legally valid the person making it must have legal testamentary capacity:
What Is the Test for Legal Testamentary Capacity – Will Claim Solicitors

He or she must also know and approve the contents of the Will:
Knowledge and Approval of the Will Contents – Will Claim Solicitors

Whilst testamentary capacity might possibly be an issue, it must surely be a given that the testator (the person making the Will) cannot have known and approved the contents if it is now being claimed the Will fails to carry out his/her intentions.

If the Will is not valid because the testator couldn’t have known and approved its contents, how can it be amended?

This was swiftly dealt with in the leading case of Marley v Rawlings and another [2014] UKSC2:

Marley (Appellant) v Rawlings and another (Respondents) (bailii.org)

At paragraph 60, their Lordships (in the Supreme Court in Marley) reject a suggested requirement that a Will has to both comply with section 9 of the Wills Act 1837 (so that it is properly signed and witnessed) and for knowledge and approval on the part of the testator. The latter would make no sense because it would plainly serve to render the right to apply for rectification inoperable:

  1. Not withstanding the fact that the contents of the Will, unless rectified, did not satisfy the requirement that they had the full knowledge and approval of Mr Rawlings, and even if the Court of Appeal had been right in their view that the Will did not satisfy the requirements of section 9(b) or (possibly) section 9(a), I consider that it would still be open for the appellant to invoke section 20. In other words, it does not appear to me that a document has to satisfy the formal requirements of section 9, or of having the testator’s knowledge and approval, before it can be treated as a “will” which is capable of being rectified pursuant to section 20

If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.

We provide details about our no win no fee arrangements at https://www.willclaim.com/nowin-no-fee/

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