Emma Holland, a senior associate in our Trust and Probate Litigation team, gives her view on a case study as part of a Lexis Nexis Q&A, about a widow who was left without provision after a Will clause was not amended upon the purchase of a matrimonial home for the couple.

The widow of the testator was left a life interest in a property and 25% of income from a trust established by the Will in the following terms: ‘If I shall still own the property…at the date of my death I direct that my Executors…’. The property was subsequently sold, and an alternative matrimonial home purchased, but the Will clause was not amended. The new property is not referred to in the Will and has fallen into residue which makes no provision for the widow. Other than a deed of variation, is any other option available to remedy this situation?

Rectification

If it is considered that the testator intended (at the point the Will was executed) to make these gifts regardless of whether the specified property had been sold and replaced, a claim could be made for rectification under section 20 of the Administration of Justice Act 1982 (AJA 1982). This provides:

…(1) If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence—

1. of a clerical error; or
2. of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.’

As noted in Practice Note: Validity of Wills—rectification of Wills:

• any application for rectification should be made within six months of the date of the grant of representation relating to the deceased’s estate, otherwise court permission will be required
• the court’s power of rectification is discretionary and it may be reluctant to exercise it if there is an alternative way to resolve the difficulty
• strong extrinsic evidence of the testator’s intentions will be required and the burden of proof will lie with the claimant
• ‘clerical error’:

• •  in Wordingham v The Royal Exchange Trust Co Ltd this was defined as: ‘An error made in the process of recording the intended words of the testator and the drafting or transcription of his will’
  • in Marley v Rawlings, Lord Neuberger identified Blackburne J in Bell v Georgiou as providing the best judicial summary of the effect of the cases so far in respect of clerical error which ‘occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert.…The remedy is only available if it can be established not only that the will fails to carry out the testator’s instructions but also what those instructions were’. He also explained that ‘clerical error’ should be given a wide, rather than a narrow, meaning
• ‘Failure to understand instructions’

• • this has a more limited scope than ‘clerical error’ and will only apply in circumstances in which the draftsman misunderstood the testator’s instructions
• the procedure will depend on whether the application is contested or not

Want of knowledge and approval

The widow may wish to bring a probate claim alleging that the testator did not know and approve of the contents of the Will at the time of execution. Further details of such claim are provided in Practice Note: Probate actions—want of knowledge and approval.

Negligence

Although the widow would likely be expected to pursue an application for rectification of the Will in order to mitigate her loss, she may also wish to consider a claim in negligence against the Will draftsman.

The Inheritance (Provision for Family and Dependants) Act 1975

If the widow considers that ‘reasonable financial provision’ has not been made for her under the Will, she may wish to bring a claim to the estate of the testator.

As noted in Practice Note: Family provision claims—the spouse and civil partner:

• the deceased must have been domiciled in England and Wales at the date of death
• a claim should be made within six months of the date of the Grant of Probate, failing which the court’s permission will be required
• the court will consider the various factors under section 3 of the Inheritance (Provision for Family and Dependants) Act 1975 including the current and future financial needs and resources of the widow, any other applicant and any beneficiary of the estate; any obligations and responsibilities that the deceased had towards any applicant or beneficiary; the size and nature of the estate; and any physical or mental disability of any applicant or beneficiary
• the court will consider the widow’s age, the duration of the marriage/civil partnership and contribution made by the widow to the welfare of the family. It is also likely to consider what the widow would have received had the marriage/ civil partnership ended on divorce rather than the death of one of the parties

The original article on Lexis Nexis can be found here 

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