Rectification of a Will - the importance of clarity of assets in Wills

We were instructed by Mr J in relation to his father’s Will after he had passed away. The Will claimed to leave all of his estate to Mr J’s sister. Mr J was convinced that the Will had been made in error and did not reflect his father’s intentions. In particular, Mr J alleged that his father had wrongly assumed that properties they owned jointly together would pass by survivorship to him, with Mr J’s sister receiving the bulk of his other assets (which would have resulted in roughly a 50/50 split between them of their father’s assets).

We advised Mr J that an application seeking rectification of the Will would have to be made within 6 months of the grant of probate, but that the first step was to obtain the file from the solicitor who drafted the Will, and that the burden of proof was on Mr J to show that the evidence was of ‘such weight’ that the Will did not reflect his father’s intentions.  It became apparent from reading the solicitor’s file that there had been a complete misunderstanding between the solicitor and Mr J’s father, because Mr J’s father had believed that the properties, which he owned jointly with Mr J, would not form part if his estate (because they would already have passed automatically to Mr J).

The relationship between Mr J and his sister was still reasonably amicable, so they were able to agree that their father’s 50% share in any properties, which he had owned with Mr J, should be transferred to Mr J as it was agreed that this was likely to be what he had intended when he made his Will.

It is worth highlighting that Mr J would have issued a claim for professional negligence against the solicitor that drafted the Will, had he not reached a settlement with his sister. Amongst other failures, the solicitor did not take time to ascertain whether Mr J’s father knew which assets he was disposing of and what the consequences were for Mr J and his sister.

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