Errors in Wills – Yes, they really happen!

In the recent case of Angelova -v- Kershaw & Clark [2024] EWHC 1830 (Ch), the High Court ordered the rectification of a deceased person’s Will after it was found “beyond doubt” that the Will draftsperson had made a clerical error and “failed to transpose” the Will instructions received.

Factual summary

Upon her fiancé’s death, Ms Angelova discovered she was not one of the class of beneficiaries under a discretionary trust which formed part of her fiancé’s estate under the terms of his Will. Ms Angelova argued that this did not reflect her fiancé’s final wishes or what he had eventually instructed the Will draftsperson to do after a number of amendments were sought during the Will-making process. Having reviewed the related Will file, the High Court found that a table had been produced by Ms Angelova’s fiancé, which clearly stated she should be a beneficiary of the discretionary trust whether or not they were married at the time of death.

Had the Will draftsperson included the above information within the Will, Ms Angelova would have automatically been included in the class of beneficiaries upon her fiancé’s death, and the assistance of the court would not have been required.

Accordingly, the High Court made an order rectifying the Will in favour of Ms Angelova.

Legal Snapshot

If a court is satisfied that a Will fails to carry out a person’s wishes or intentions owing to a “clerical error” or a “failure to understand” the Will instructions received, it may order that the Will in question be rectified post-death. The court’s power of rectification under section 20 of the Administration of Justice Act 1982 does, however, remain discretionary, with such claims having to be made within six months of a grant of representation being issued in the deceased person’s estate.

When asked to exercise its discretion, the court must consider:

• What were the deceased person’s intentions at the time of making their Will?
• Is the Will expressed in such a way that it fails to carry out those intentions?
• Are the effects of the Will a result of a clerical error or the failure on the part of the draftsperson to understand the Will instructions received?

Whilst a “clerical error” generally includes inadvertent errors, it does not necessarily extend to a failure to appreciate the legal effect of words used in a Will which ultimately fail to produce the intended legal effect.

Speculative evidence of the deceased person’s wishes and intentions will not suffice, as extrinsic evidence is required.

In circumstances where the rectification of a Will is unopposed by all interested parties, then it may be possible to seek the necessary relief under the Non-Contentious Probate Rules 1987. There is also the possibility of engaging in suitable forms of alternative dispute resolution, such as mediation, to reach an early settlement prior to anyone incurring the eye-watering costs of formal litigation (court proceedings).

Naturally, this type of matter always raises the question of whether the firm or draftsperson who presided over the Will should be held liable for their negligent acts and/or omissions. An action of this nature is sometimes avoidable by the negligent party agreeing early on to indemnify the disappointed beneficiary for the costs of rectification.

Closing Comments

The case of Angelova v Kershaw & Clerk is yet another timely reminder of why it is so important to ensure that Will instructions are clearly understood and recorded correctly during the Will drafting process. Some may also say that this case is a clear demonstration of why Wills should be regularly reviewed even after execution and not simply thrown in the kitchen drawer, as so many still are. We all have those kinds of drawers, right?

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