Sometimes a Will can fail to give effect to the true intentions of the Testator (the person who made the Will). It is possible for the Court to correct a Will if the Court considers that there was either:
- A clerical error; or
- A failure to understand the Testator’s instructions
If a professional Will drafter misunderstood the law, rather than the Testator’s instructions, then there may be a claim for professional negligence if you have suffered a loss as a result.
An application to rectify an error in a Will must be made within 6 months of the Grant of Probate. Whilst this can be extended with the Court’s permission in limited circumstances, it is important that you take advice as soon as possible to avoid further issues.
Is a Court application required?
Sometimes all effective parties can agree that the Will fails to give effect to the true intentions of the Testator. In these circumstances, it may not be necessary to apply to the Court for an Order to rectify the Will. In such cases, it may be possible for the parties to agree an appropriate Deed of Variation to vary the terms of the Will to give effect to the Testator’s intentions.
Sometimes however the Court’s approval is needed even where the parties are in agreement. This is common where one of the parties is a minor child or someone who lacks mental capacity. In those circumstances, a Court application is required to obtain the necessary consent on their behalf.
How can we help?
Our team can advise you on the best way to deal with the matter and the steps required to obtain the consent from Court if required.
