Our Mistakes in Wills Service
Mistakes, Missing Wills and Will Interpretation Disputes
When someone dies, the people they leave behind rely on their Will being clear, valid and correctly carried out to ensure the deceased’s wishes are respected.
Unfortunately, mistakes in Wills are more common than many people expect, and common drafting errors often only come to light during probate.
A Will may contain a drafting error, fail to reflect the deceased's instructions, be impossible to locate after death, or be so unclear that its meaning becomes the subject of dispute.
These are common mistakes that often arise from unclear language or incomplete instructions when a Will was being prepared.
Where a mistake has caused a beneficiary to lose out, or where uncertainty arises over the contents or validity of a Will, there are often legal steps that can be taken to rectify the position and ensure the outcome matches the testator's intentions.
Whether you are concerned about a mistake in a Will, a Will being lost or a damaged or destroyed Will, obtaining early legal advice can be crucial to preserving evidence.
Our contentious probate team advises executors, beneficiaries and trustees across England and Wales on correcting mistakes in Wills, resolving disputes over their interpretation, dealing with lost or damaged Wills, and pursuing claims where professional errors have caused financial loss, including cases involving trust assets.
Mistakes in Wills
What Counts as a Mistake in a Will?
A mistake can arise at almost any stage of preparing and writing a Will. The most common problems we see include:
- The Will does not reflect the instructions the deceased actually gave, or the testator's intentions have been inaccurately recorded.
- A clerical or typing error changes the meaning of a clause.
- The wording is ambiguous, leaving unclear what the deceased intended and casting doubt on their intentions.
- A gift fails if the asset no longer exists or if the beneficiary dies before the testator, which affects how the assets pass.
- The Will was not properly signed or witnessed, potentially rendering it invalid.
Not every mistake can be corrected, and the appropriate course of action will depend on the nature of the error and the circumstances in which it arose.
Taking care at the drafting stage can help ensure the Will is valid, reflects the testator's intentions, and reduces the risk of later challenges.
Common Examples of Mistakes in Wills
Mistakes in Wills can arise in many different ways, particularly where drafting is rushed.
We frequently advise on situations where a beneficiary has been omitted altogether, a gift has been left to the wrong person, property has been incorrectly described, trust provisions are unclear, or drafting errors have created uncertainty about how an estate should be distributed.
In some cases, the error stems from a solicitor or Will writer misunderstanding the testator's instructions or not capturing the testator's intentions in the Will.
In others, a seemingly minor clerical error can have significant consequences for those expecting to inherit. The effect of the mistake will often determine the most appropriate course of action, whether that involves rectification, the court confirming the interpretation of the Will, steps to rectify the drafting, or a claim against the professional responsible.
Can a Mistake in a Will Be Corrected?
In many cases, yes. Where a Will does not carry out the deceased's true intentions, two routes are commonly used: rectification and construction, depending on the circumstances.
Rectification of a Will
Under section 20 of the Administration of Justice Act 1982, the court can order the rectification of a Will where it fails to reflect the deceased's intentions because of a clerical error, or because the person preparing it did not understand the deceased's instructions or intentions.
Rectification effectively amends the affected part of the Will so that it says what the deceased intended it to say. The court's role is not to rewrite the Will, but to correct mistakes that have prevented the deceased's intentions from being properly recorded.
There is an important time limit with these claims. An application for rectification is normally made within six months of the grant of probate. Although it may be possible to apply later with the court's permission, acting promptly will usually help protect your position and ensure assets are not distributed on the wrong basis.
Construction (Interpretation) of a Will
Where the problem is not a mistake as such but genuine ambiguity, the words of the Will may be capable of more than one interpretation. In those circumstances, the court can be asked to determine the correct meaning of the relevant provision.
Depending on the circumstances, the court may consider evidence outside of the Will to establish the deceased's intent. The court will apply established rules of interpretation to ensure the clause is read consistently with the document as a whole and, so far as possible, the testator's intentions. Construction claims can often resolve disputes between beneficiaries without challenging the validity of the Will.
Damaged or Destroyed Wills
A Will that has been torn, marked, partly burnt or otherwise damaged raises questions about whether the deceased intended to revoke all or part of it and whether it remains valid.
The condition of the document and the circumstances of the damage can be critical. The court may need to consider whether the damage was accidental, caused by a third party, or carried out by the deceased with the intention of revoking the Will.
We can advise on disputes involving damaged or partially destroyed Wills and assist in determining whether the document remains valid (or is invalid) and what evidence may be required.
Lost Wills
A Will is not always available when it is needed. We regularly help executors and beneficiaries deal with situations where the original Will cannot be found after death, including where it may have been lost.
What Happens if a Will Is Lost?
If the original Will cannot be located and was last known to be in the deceased's possession, the law generally presumes that the deceased deliberately destroyed it with the intent to revoke it.
However, that presumption can be challenged. Where a copy of the Will exists, or there is strong evidence regarding its contents and execution, it may still be possible to admit a copy of the Will to probate and ensure the deceased’s wishes are followed.
Practical first steps where you cannot locate a Will include searching the deceased's home and papers, contacting their solicitor, bank or financial adviser, and checking the National Will Register (Certainty), as well as making a structured search of likely storage locations.
A careful search should also include asking close family, reviewing any Will storage receipt, and checking whether a Will was found with other important documents. Our contentious probate solicitors can advise on locating a missing Will, where to search, what to look for in the deceased’s records, and how to prove its contents to the Probate Registry.
Lost Wills often give rise to disputes between family members, particularly where the terms of a copy differ significantly from what would happen under the intestacy rules and do not reflect the deceased’s wishes. In these circumstances, the court may need to consider evidence from those who knew the deceased, the solicitor who prepared the Will, or others involved in their affairs.
The outcome can significantly affect who inherits the estate and may affect the estate's overall administration.
Can a Copy of a Will Be Used for Probate?
Yes, in some circumstances.
The Probate Registry may admit a copy of a Will where sufficient evidence can be provided regarding its contents and execution, and where the presumption that the original was destroyed with the intention of revoking it can be rebutted.
Each case will depend on its own facts and the evidence available. If the original document is missing, the process usually focuses on what can be found from the deceased’s papers, solicitor’s file, and witness evidence to ensure the Probate Registry is satisfied.
When the Mistake Was the Professional's Fault: Negligence Claims
Where a solicitor or Will writer has caused loss, for example, by drafting a Will incorrectly, misunderstanding instructions, or failing to act before a client dies, it may be possible to bring a professional negligence claim to ensure the affected beneficiaries are compensated.
A negligent solicitor can owe a duty not only to the person making the Will but, in certain circumstances, to beneficiaries who were intended to benefit and have suffered financial loss as a result of the error.
Professional negligence claims involving Wills often arise where a solicitor fails to implement instructions correctly, does not complete a Will before the client dies, or drafts provisions that do not achieve the intended outcome. Such claims can be complex because they frequently overlap with probate disputes and questions about the deceased's intentions.
Before bringing a negligence claim, it is often sensible to consider whether the position can be corrected another way, such as through an agreement between beneficiaries or an application for rectification or construction. We will advise on the most appropriate and cost-effective route based on the circumstances of the case, and our team will work with you to obtain crucial evidence.
How We Can Help
Disputes involving mistakes in Wills, lost Wills, and damaged Wills often require prompt action, particularly where probate has already been obtained, or estate assets are being distributed, and steps are needed to ensure nothing is done that cannot be undone.
Obtaining early legal advice can help preserve evidence, protect your position, and identify the most effective way to resolve the issue, ensuring the outcome accords with the testator's intentions.
Our contentious probate solicitors advise executors, beneficiaries and trustees on a wide range of disputes involving the interpretation and validity of Wills and trust arrangements.
Whether the issue concerns rectification, a dispute over the meaning of a clause, a missing Will, or a claim arising from negligent drafting, we can guide you through your options, help you find evidence, and represent your interests throughout the process.
We understand that these disputes often arise during a difficult period for families and that they can involve significant financial consequences for multiple people. Our team provides clear, practical advice to achieve a resolution as efficiently and cost-effectively as possible.
Mistakes in Wills: Rectification Claims, Lost, Damaged or Destroyed Wills FAQs
Can a Will Be Changed After Death?
The Will itself cannot be simply rewritten after death, even where poor drafting has led to a dispute. However, the court may rectify a Will that contains a mistake, and beneficiaries may be able to alter the distribution of an estate through a deed of variation in certain circumstances to ensure the outcome reflects the deceased’s wishes.
What Is a Rectification Claim?
A rectification claim asks the court to correct a Will that does not properly reflect the deceased's intentions because of a clerical error or a failure to understand their instructions.
What Happens if a Will Is Lost?
If the original Will cannot be located and was last known to be in the deceased's possession, the law generally presumes it was destroyed with the intention of revoking it, unless it can later be found or the presumption is rebutted. That presumption can sometimes be challenged with evidence, particularly where a copy of the Will is available, or the Will was known to have been held in professional storage before going missing.
Is There a Time Limit to Correct a Mistake in a Will?
Applications for rectification are normally made within six months of the grant of probate, although the court can permit later applications in appropriate circumstances. Different time limits apply to other types of probate and negligence claims.
How Much Does It Cost to Correct a Mistake in a Will?
The cost will depend on the complexity of the dispute, the evidence required and whether court proceedings become necessary. Early legal advice can often help identify the most cost-effective route to resolving the issue.
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