What Can Be Done About a Poorly Drawn up Will?
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss some of the steps that can be taken to remedy a badly drawn up or drafted Will
What can be done about a badly drawn up or drafted Will?
In this instance we are discussing errors in drafting or ambiguous terms. We did previously consider issues to do with mistakes on the part of the testator when he came to make a Will to include a mistaken belief that money was owed by a particular individual which proved not to be true. For more information about this you should consider our earlier blog:
In general drafting errors or ambiguous terms within Wills leading to disputes about the Will and/or Will contest claims are capable of resolution by the courts in one of two ways:
- firstly by way of interpretation; and/or
- secondly by rectification.
Both of these were considered in some detail by the Supreme Court in Marley v Rawlings 2014 UKSC 2:
The interpretation jurisdiction
This arises under section 21 of the Administration of Justice Act 1982:
So where any part of a Will is meaningless, ambiguous whether on its face or given the surrounding circumstances, then extrinsic or external evidence including evidence of the testator’s intentions can be admitted to assist in its interpretation. In Marley above, Lord Neuberger, who provided the leading Judgment put it thus:
24. “(1) This section applies to a will –
a) in so far as any part of it is meaningless;
b) in so far as the language used in any part of it is ambiguous on the face of it;
c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.
(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation.”
- In my view, section 21(1) confirms that a will should be interpreted in the same way as a contract, a notice or a patent, namely as summarised in para 19 above. In particular, section 21(1)(c) shows that “evidence” is admissible when construing a will, and that that includes the “surrounding circumstances”. However, section 21(2) goes rather further. It indicates that, if one or more of the three requirements set out in section 21(1) is satisfied, then direct evidence of the testator’s intention is admissible, in order to interpret the will in question.
- Accordingly, as I see it, save where section 21(1) applies, a will is to be interpreted in the same way as any other document, but, in addition, in relation to a will, or a provision in a will, to which section 21(1) applies, it is possible to assist its interpretation by reference to evidence of the testator’s actual intention (eg by reference to what he told the drafter of the will, or another person, or by what was in any notes he made or earlier drafts of the will which he may have approved or caused to be prepared).
The rectification jurisdiction
This arises under section 20 of the Administration of Justice Act 1982:
The relevant part states as follows: 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.
In essence then if the court is satisfied the Will doesn’t carry out the testator’s intentions because of a “clerical error” or “failure to understand his instructions” it may order that it is rectified (in effect altered and/or adjusted by the court) so that it does (carry out the testator’s intentions).
It was again considered in Marley which itself was rather an extreme case. In Marley the Solicitor who had prepared mirror Wills for the testator and his wife, got them mixed up, so that his wife signed his Will and he signed his wife’s. Nobody noticed until after death!
The Supreme Court in Marley in what was an extremely pragmatic Judgment found it had the jurisdiction to deal with the error under “rectification” and that in the circumstances it should make the Order:
While I accept that fine distinctions can often lead to different outcomes where one is near the limits of the scope of some statutory provisions, a distinction of this sort seems to me to be capricious or arbitrary. The position is essentially the same in the two cases. In each case, it was because his solicitor accidentally handed A a document which contained B’s will rather than A’s will, that A executed B’s
will thinking that it was his will. In each case, the reason that the will which A executed did not represent his intentions was a silly mistake by the solicitor in the mechanics of faithfully carrying out his instructions. In neither case did the mistake involve the solicitor misunderstanding or mischaracterising the testator’s intention or instructions, or making any error of law or other expertise, so the error may fairly be characterised as “clerical” – and there is no question of trespassing into section 20(1)(b) territory.
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.
We provide details about our no win no fee arrangements at https://www.willclaim.com/no-win-no-fee/.