A Will is invalid if at the time it is executed the person making it (‘the testator’) does not know:

1. that they are making a Will; or

2. that it will dispose of their property upon their death; or

3. what the terms of the Will are.
   
   

In practice, the first and second examples above usually apply when the testator is vulnerable and has only a limited understanding of what they are doing. Alternatively, they can be relevant when fraud is alleged, i.e. when it is claimed that the testator was duped into signing their Will.

The third instance is of wider relevance though – it has a greater potential to affect people of full mental capacity, and to catch people out by accident.

In practice, the third instance usually comes into play when:

1. the Will has been incorrectly drafted by the testator’s solicitor as a result of a failure to understand the testator’s instructions; or
2. the solicitor has failed to word the Will so as to give effect to the testator’s intentions (say where a solicitor (with good intentions) includes terms in the Will which the testator did not ask to be included, with the result that the testator executes a Will that includes terms they did not know about); or
3. there has been a clerical error, resulting in the Will saying something that the testator never intended.

It is important to note that the test is one of factual knowledge at the time the Will is made. Consequently, (leaving the issue of professional negligence for a solicitor’s failure to advise the testator on what the legal effects and consequences of their Will may be to one side) provided the Will reflects the testator’s instructions to their solicitor as to how their property should be disposed of it does not matter that the testator does not understand the law.

That can cause problems, since it creates a risk of a testator making a Will which has unintended legal consequences; for instance a failure on the part of a testator to appreciate the potential tax treatment of the terms of a Will does not invalidate the Will, nor does it constitute grounds for the Court to rectify (i.e. alter) the Will’s terms to achieve an outcome that suits the beneficiaries and which the testator probably would have wanted (i.e. a tax saving).

Furthermore, if circumstances change in the time between the testator making their Will and their death, say the value of land increases, resulting in one beneficiary receiving an inheritance far more valuable than another’s (which might not have been what the testator anticipated), the outcome is not something the Court can alter – the Will is valid, it is the surrounding circumstances that have changed.

The above underlines the importance of taking comprehensive advice from a solicitor about making one’s Will and of keeping one’s Will under review.

Rectification

Where a testator did not know or approve the terms of their Will, because a clerical error crept in or because the Will Writing Solicitor did not understand the testator’s instructions, the Court can change the terms of the Will after the testator’s death so that it says what it should have said (s.20 Administration of Justice Act 1982).

However, such a claim must be made within 6 months of a Grant of Probate being obtained.

Furthermore, a claim for a Will to be rectified inevitably means that the person who benefits from the alleged error in the drafting may miss out on their alleged windfall. Consequently, claims for rectification can be contentious (though sometimes everyone agrees that the Will is wrong and should be rectified).

Contentious Cases

Where a Will has been signed by the testator and it has been properly witnessed and it appears at first blush that the testator had the necessary mental capacity to validly make their Will, the Court (i.e. the Judge at trial) will take the view that the testator did know and approve the contents of their Will.

However, that view can be overturned where it is proved on the balance of probabilities (i.e. what is most likely) that the testator did not know and approve the Will’s terms.

A claim on those grounds can be resisted however by providing the Court with sufficient evidence to satisfy it that the testator did in fact know and approve the terms of their Will.

If the Will is declared to be invalid as a result of the testator not knowing its terms or approving them, the testator’s previous Will will be ‘revived’ and if the testator did not make a previous Will their estate will be distributed in accordance with the Intestacy Rules.

Professional Negligence

Ultimately, a Will should not have to be rectified, it should be properly drafted so as to reflect the testator’s intentions.

Furthermore, the point of having a solicitor draft one’s Will is to ensure that one’s estate passes in accordance with one’s wishes and without those wishes being defeated by foreseeable circumstances.

However, where as a result of a solicitor’s or Will writer’s negligence a Will does not benefit the persons or entities the testator intended to benefit, or the advice the solicitor or Will writer gave the testator was inadequate and results in their estate suffering loss, the beneficiaries who have missed out on their inheritance or who have suffered loss as a result of the poor advice can claim their inheritance or their loss from the negligent solicitor or Will writer in damages.

How can we help?

For assistance in dealing with a contested Will, or any probate disputes, contact Ralph Wheeler on ralph.wheeler@porterdodson.co.uk or click below for our dedicated help line.