Legal

CHANGING WILLS AFTER DEATH

David Hill, Private Client Partner, Mogers Drewett

Although not common, mistakes and errors in wills do happen. However, when they are discovered after the testator (the individual who has made a will) has passed away, this can cause problems for expectant beneficiaries.

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 Where there is a mistake in a will, or if the will is simply out of date, and the beneficiaries are all agreeable to it being amended, it may be possible to complete a ‘deed of variation’ to change the contents of the will.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 make it more tax efficient or to simply pass assets on to the next generation.

A deed of variation is often the quickest and most cost-effective way of amending the terms of a will after someone has died, but it is important not to rely on this and instead regularly review your will, to ensure it is up 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. 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. By rectifying the will, the court gives effect to the testator’s real intentions.

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.