When a Will is ambiguous or does not do what the person who made it intended, there are ways to remedy the position.
Construction in this context is a question of how the Will should be interpreted when it is possible to read it in more than one way. Where there is uncertainty, a resolution can be reached:
- By agreement between those concerned;
- Following a court application by the executors under section 48 of the Administration of Justice Act 1985, which usually does not involve a hearing; or
- Following full court proceedings.
It is advisable for all parties, including the executors, to obtain legal advice in relation to these claims.
The court can “rectify” a Will, to add, change or remove wording, where that will correct either:
- A “clerical error” on the part of the person drafting the Will, that is a mistake that they have made without really thinking about it; or
- A failure by the person drafting the Will to properly understand the instructions of the testator.
A solicitor may be found to be negligent if they have made a mistake in the Will or failed to follow up on a person’s Will instructions and that person dies before they sign their Will.
If a professional has been negligent and caused financial loss, it may be possible to bring a claim against them. Initially, you will need to consider whether it is possible to correct the position by, for example, reaching an agreement or bringing an application for construction or rectification of that Will.
Please contact us if you are interested in discussing these options with a member of our team.