Executors: What If A Will Is Ambiguous Or Contains A Mistake?

If you’re dealing with a Will that’s ambiguous or contains a mistake, you have a number of options available to you.

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By Nicola Briggs - 16th December 2021

If you’re dealing with a Will that’s ambiguous or contains a mistake, you have a number of options available to you. This includes making a Deed of Variation (if everyone agrees) or asking the court to interpret the meaning for you.

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Wills which are open to interpretation

Homemade Wills are particularly prone to including language which could have several meanings and which are open, therefore, to different interpretations. Naturally, those who stand to benefit from one interpretation will contest the interpretation of the other person who also thinks they stand to benefit.

Examples of this would be:

  • I leave all my assets in the United Kingdom to my son – the United Kingdom does not include Jersey or the Channel Islands and therefore bank accounts in these offshore islands will not pass to the son;
  • I leave my house to my issue – ‘issue’ has a technical meaning to include all those down a blood line and does not therefore include step-children or those who have been treated as a child of the family;
  • I leave my jewellery to my family – does this include cousins?
  • A gift of £10,000 to both my sisters – does that mean they share £10,000 or they get £10,000 each?

 What are the options going forward?

If everyone can agree an interpretation, one solution is to prepare a Deed of Variation of a Will, setting out the agreed version.

Another option is for a written opinion to be obtained from a Barrister as to the meaning of the text. This is then submitted to court for ratification on the basis that all those who stand to benefit or lose agree with the Barrister’s opinion.

As a last resort, a claim can be made by someone who seeks a declaration as to the meaning of the words, which will then have to be followed by the Executors and/or beneficiaries.

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Asking the court to interpret the Will

If there is an ambiguity, the Executors can make an application to the court, asking the court to declare the meaning and effect of the words. The court will consider:

  • The natural and ordinary meaning to the written word
  • The intention of the Testator at the time of the Will writing
  • The purpose behind the gift
  • The facts known and assumed by the parties in the Will writing process

The court will apply some common sense. The test is not what did the Testator subjectively mean, but what do the words objectively mean to the man in the street.

A court will try to make sense of the Will, as there is an assumption that the Testator did not want a full or partial intestacy or for the Will to be tax inefficient. However, the court can’t write in something that cannot be gleaned from the words themselves.

Only in limited circumstances will extrinsic evidence be brought into account. This might include the file of the professional who helped the Testator with their end-of-life planning. Or it could be a statement from a family member to the effect that the person who wrote the Will always called their wife ‘Granny’, as that was what she was called within the family, and he wasn’t referring to his own grandmother.

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What if there’s a mistake in the Will?

If there has been a secretarial mistake or a term has been included in a Will without the Testator understanding the effect, then the Will can be rectified. However, there will be no rectification where the problem has arisen due to a misunderstanding of the law or of the tax consequences. In those cases, a claim for negligence is made against the professional who assisted in the process. If no professional assistance was received, then there can be no claim for negligence and the beneficiaries will have to suffer the consequences of a badly drawn Will.

Some words have hidden meanings. Some terms are implied into a Will by the general law so as to change the effect of a particular clause from that which the Testator had intended.  Will writing is a minefield. As soon as it becomes apparent to you that there is a lack of agreement by all parties, being that the Executors, Trustees or Beneficiaries, we suggest that immediate legal advice is taken to resolve the issues so as to avoid the expense of a contested estate administration.

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