Will Challenge Fails

If you sign a will that is incorrectly drafted, you may think it would be a simple matter for the will to be amended after your death.

Regrettably, this is often not the case. A will can be varied, with the agreement of all the beneficiaries affected by the change, by means of a ‘Deed of Variation’. However, this option is not always available.

Currently, a will can also be varied (‘rectified’) if it can be clearly demonstrated that an error it contains came about because of a clerical mistake on the part of the person drafting it or it was drafted in the way it was because of a clear failure to understand the testator’s instructions. Rectification is not available, however, when the error contained in the will is a legal mistake.

In a recent case, an attempt to obtain the rectification of a will on the ground that it did not, as drafted, represent correctly the testator’s wishes was denied by the court. As a result, because of the drafting error, £100,000 of the estate will pass to four people who were not intended to inherit under the will.