Do you believe a poorly drafted will has prevented your charity from receiving a legacy?

What should your charity do if it is named as a beneficiary under a will and another beneficiary or third party asserts that the will, as drafted, does not give effect to the testator's true intentions and should be "rectified" (corrected)? Or what if your charity has been omitted from the testator's will, in circumstances where it believes it was an intended beneficiary of the estate, or has been bequeathed a lower sum than it believes the testator intended it to receive?

There are two grounds for rectification, and the courts will expect the claimant to meet a particular standard of proof in support of his/ her claim. There is only a short window in which to bring a claim, although the courts will, in exceptional circumstances, allow out of time applications.

Grounds for rectification

Section 20 of the Administration of Justice Act 1982 (the Act) provides that a court may order a will to be rectified to give effect to the testator's wishes if it is satisfied that the will fails to carry out the testator's intentions because of (a) a clerical error; or (b) a failure on the part of the draftsman to understand his instructions.

"Clerical error" was defined in Wordingham v Royal Exchange Trust Co Ltd [1991] 2 WLR 496 as an error made while recording the intended words of the testator, rather than an error made in carrying the testator's intentions into effect. In practice, there is often a fine line between these two scenarios (see, for example, the recently reported case of David Price v Robert Craig [2006] LTL 27/10/2006, mentioned below).

It will be important for the parties to a potential claim to request a full witness statement and a copy of the will file from the draftsman who took instructions from the testator at an early stage, in order to properly assess whether there has been a clerical error or failure to understand the testator's instructions. In some instances, it may be apparent from the will file that the draftsman misunderstood the law, rather than the testator's instructions, in which case the court has no power to rectify the will. This situation may instead justify a claim by the disappointed beneficiaries on the ground of negligence: see White v Jones [1995] 2 AC 207.

Standard of proof

The court will not order rectification of a will unless there is "convincing evidence" that the will does not reflect the testator's intentions. In Re Segelman [1996] Ch 171, Chadwick J stated: "Although the standard of proof required in a claim for rectification made under s 20(1) of the 1982 Act is that the court should be satisfied on the balance of probabilities, the probability that a will which a testator has executed in circumstances of some formality reflects his intentions is usually of such weight that convincing evidence to the contrary is necessary."

Bringing a claim

An application for an order for rectification of a will may be made to a district judge or registrar (unless a probate action has been commenced), by virtue of s 55 of the Non-Contentious Probate Rules 1987. The application should be supported by an affidavit, setting out the grounds of the application, together with any supporting evidence which can be adduced as to the testator's intentions and (i) the ways in which the testator's intentions were not understood; or (ii) the nature of any alleged clerical error.

Unless otherwise directed, notice of the application must be given to every person having an interest under the will who might be prejudiced if the will is rectified. Any comments in writing by any such persons must be exhibited to the affidavit in support of the application. If the court is satisfied from the evidence that the application is unopposed, then it may order the will to be rectified, but if it is opposed, proceedings must be commenced in the Chancery Division of the High Court.

Time limits and applications out of time

Section 20(2) of the Act specifies that a claim for rectification of a will must be brought within six months of the date of the grant of probate. What should you do if your charity wishes to bring a claim after this deadline has expired, or your charity is facing a claim by a third party, in such circumstances? The answer is that an application will need to be issued by the party who wishes to bring the claim, requesting the court's permission to bring proceedings out of time. The applicant will need to make out a substantial case for it being just and proper for the court to exercise its discretion to extend the time limit.

In Re Salmon deceased [1979] 3 WLR 802 sets out guidelines that the court will take into account when determining whether to grant permission for an application for rectification of a will to be brought out of time (this was an Inheritance (Provision for Family and Dependants) Act 1975 case, but the guidelines apply equally to rectification claims, as confirmed by Chittock -v- Stevens [2000] 1 WTLR 643).

The court will consider how promptly and in what circumstances the applicant has sought the permission of the court after the time limit has expired; whether or not negotiations had been commenced within the time limit; whether the estate had been distributed before the claim for rectification was notified, and whether a refusal to extend the time limit would leave the applicant without redress against anybody (it is therefore relevant to consider whether the applicant would have a claim against his/her solicitors in negligence). It is likely that the court will also be required to consider whether the applicant has an arguable case that the will should be rectified (see Re Dennis [1981] 2 All ER 140, which followed on from Salmon).

The recent cases of Hobart v Hobart [2006] All ER(D) 295 and David Price v Robert Craig (reported below) both involved applications for permission to bring rectification proceedings out of time and, in both cases, the court granted such permission. Nevertheless, charities should not rely upon the fact that the court has discretion to extend the time for bringing proceedings, as the court may well refuse an application for permission. Charities should therefore seek to bring an application for rectification of a will within the relevant six-month period, wherever possible, and should take advice upon any application by a third party for permission to bring proceedings out of time, before deciding whether to agree or oppose the application.

Applications for rectification of wills

There have been some interesting decisions involving applications for rectification of wills over the past few years, some of which have been successful and others which have not.

In Grattan v McNaughton, Grattan and Brydson [2001] Ch D LTL 8/8/2001, the court refused to rectify the testator's will on the ground that there was no evidence that the will draftsman had misunderstood his instructions. The court found that the testator's will was a relatively straightforward one and all the evidence indicated that he was fully capable of understanding its terms and effect. However, it was common ground that the will as drawn failed to make reasonable financial provision for the claimant, who was the testator's widow, and the court instead made an award to the widow under the Inheritance (Provision for Family and Dependants) Act 1975.

The court also refused to order rectification in a case reported the following year, In Re Joan Mary Bell deceased [2002] EWHC 1080, in which the testatrix's son brought a claim for rectification of his mother's will on the basis that the will did not accurately reflect her instructions. The testatrix had bequeathed a pecuniary legacy of £150,000 to her son and the residue of her estate to the RAF Benevolent Fund (RBF), with the result that £500,000 plus interest was payable to RBF. The son contended that his mother's instructions to the solicitor who drew the will made it clear that either she had intended to make a further legacy to her son; or that she had intended to give no more than £11,000 to RBF. However, based upon the evidence before it, the court found that the will did give full effect to the testatrix's intentions, as communicated to the solicitor who drafted the will, and therefore refused to order rectification.

In contrast, in Jennifer Goodman v Geoffrey Goodman [2006] EWHC 1757, the High Court was persuaded that the draftsman of the testator's will had misunderstood the testator's instructions when he had inserted a clause that meant that two sets of £2,000 payments were payable from the testator's estate each month rather than just one. The court therefore ordered rectification of the will.

Again, in the recently reported case of David Price v Robert Craig, the court ordered a will to be rectified, although this time on the basis of a clerical error. During the preparation of the will, the testator had made it clear to his solicitor that he wished his residuary estate to be divided between the claimants, but the will failed to give effect to this because of an inadvertent use by the solicitor of the concept of a 'property fund' (in place of the words 'trust fund'). It was held that this constituted a clerical error (as opposed to an error made in carrying the testator's intentions into effect, which would not have allowed the court to order rectification.

Conclusion

The court will not order rectification of a will unless there is "convincing evidence" that the will does not reflect the testator's intentions, as a result of a clerical error or failure to understand the testator's instructions. It is important that charities obtain specialist legal advice at an early stage of a potential claim, so that a careful analysis can be carried out as to whether or not the court would be likely to order the will to be rectified.

Rectification of inter vivos documents

The requirements for rectification of wills set out in s 20 of the Act are different to those which apply to rectification of inter vivos ('lifetime') documents. Henmans LLP can be contacted for advice upon rectification of inter vivos documents, as well as rectification of wills.

For further information, please contact Angela Bowman

This article was first published in Codicil magazine