Can the Will of someone who has died be changed?
Although not common, mistakes and errors in Wills do happen. However, when mistakes or errors are discovered after the testator (the individual who has made a will) has passed away, this can cause problems for expectant beneficiaries.
Private Client Partner, David Hill discusses the two main options (Variation and Rectification) to consider when looking to change the terms of a Will after someone has died.
What is a Deed of Variation?
Where there is a mistake in a Will, or if the Will is simply out of date, and the beneficiaries are all agreeable to it being amended, it may be possible to complete a ‘deed of variation’ to change the contents of the will.
This must be done in writing. The document must be signed by the beneficiaries who are prejudiced by the variation and if the variation affects the amount of Inheritance Tax or Capital Gains Tax payable by the estate, it must also be signed by the executor of the estate.
Why would someone make a variation?
There are a number of reasons one might wish to make a variation, for example, to make provision for someone who was excluded from the Will, to take account of differences in the financial position of beneficiaries, or to simply pass assets on to the next generation.
Of course there may also be financial reasons for considering a variation. If a number of years have passed since a Will was put in place, it is entirely possible that the Will may be far less tax efficient at death than it was when originally done.
How is it done?
The variation must be in writing and although HM Revenue & Customs suggest a letter would suffice, a formal deed is advised as there are many strict conditions to be met for a Deed of Variation to be valid, including:
- Any variation must be made within 2 years of the death to be effective for Inheritance Tax and Capital Gains Tax purposes,
- The part of the estate being varied and who is to benefit from the variation must be clearly identified
- All beneficiaries affected must mutually agree to the changes
- All beneficiaries affected are over the age of 18 years old
What are the advantages of a variation?
In addition to the benefits of being able to create tax efficiencies for beneficiaries, a variation also provides beneficiaries with a degree of control. This is particularly important if family circumstances have materially changed since the Will was made and they wish redirect all, or part, of their entitlement in an estate to benefit another or, perhaps, a charity or a trust. A Deed of Variation is often the quickest and most cost effective way of amending the terms of a Will after someone has died.
Deeds of Variation do, of course, have their place but it is important not to rely on this and instead regularly review your Will, to ensure it is update to date. There are however, occasions when a Will is incorrect due to a clerical error or failure to understand someone’s wishes and this is where rectification could be the solution.
What is Rectification?
Where there is a mistake in a will due to either a clerical error or to a failure to understand the testator’s instructions, it may be possible to fix the mistake by way of an application for ‘rectification’ under s20 Administration of Justice Act 1982 within six months of Probate being granted.
For example, in a recent case Barrett v Hammond the Court agreed to rectification of the Will, where the professional’s mistake in counting the legacies in the Will and Codicils led to part of the estate not being allocated to beneficiaries.
When can a Will be rectified?
The Court may order rectification if it is satisfied that the mistake or error identified in a Will is a result of either a clerical error or a failure to understand the instructions of the testator by the person who drafted the Will. By rectifying the Will, the Court gives effect to the testator’s real intentions.
Clerical errors
Historically, the majority of clerical errors involved typographical errors. This changed, however, with the ruling in the case Marley v Rawlings. Here, the Wills of a husband and wife were made on identical terms. However, due to an error, the husband signed the wife’s Will and vice versa. Normally, a document not signed by the testator would make the Will invalid and therefore it could not be rectified. The Supreme Court disagreed and held that the mistake with signatures could be considered a clerical error and the Wills were capable of rectification. The Court laid out a very wide definition of a clerical error, which now includes ‘office work of a relatively routine nature, such as preparing, filing, sending, or organising the execution of a document.’
Professional negligence
If rectification of a Will is available, it is generally the best option for beneficiaries who are adversely affected. If a Will is capable of being rectified and the beneficiaries suffer no loss, then they have no right to a further claim against the professional who made the mistake.
Where rectification is ordered and the costs of that process are to be paid from the estate, the beneficiaries might seek to bring a professional negligence claim against the professionals involved in the preparation of the Will on the basis that rectification would not have been necessary but for the solicitor’s error.
In other instances, the case for rectification may not be met but disadvantaged beneficiaries may still have a claim against the solicitor or Will writing professional. They would need to show the professional had been negligent in not ensuring that the Will making process was carried out competently, so as to ensure that the testator’s intentions were understood and carried out correctly.
If you have any questions, regarding mistakes in Wills, the possibilities of their rectification or simply wish to amend your Will after a review, please contact David Hill on 01225 750 000 or email david.hill@mogersdrewett.com we are happy to help