Rectification of a Will

[G7ivp]

Re: Rectification of a Will

Other than the outcome wishes of the Niece and Nephew of course, is there a reason you feel that the Will not containing the survival clause is an error ? Does the rest of the Will point that way ?

@Peridot will know for sure as I'm not 100% whether the brothers share goes to his issue directly or through his estate first, or if, as the brother isn't issue of the testator it actually does go back to the estate anyway without needing the survival clause ( just re-read s33 of the Wills Act and confused myself !)

She probably won't be about till Monday though.

The issue of what happens to the brother's share has been dealt with in another post and the consensus was that it created a partial Intestacy.

Solicitors for the niece have suggested that they will apply for a Rectification, they have not given on what grounds. Were such an application made I felt it would be on the grounds of a clerical error (i.e. that there should have been a survivor clause).

I do not feel there was either a clerical error or a failure to understand the testator's wishes but rather an error in law and hence any application for a Rectification would fail and the brother's share should be dealt with via Intestacy.

There is no "rest of the will" (save general preamble). This is the only clause that deals with the distribution of the estate.

[Peridot]

Re: Rectification of a Will

Hi,
Can you post the link to the previous thread, I assume that is in relation to the deceased brother? Did the deceased brothers residue become a partial intestacy, so there was a will?
I can have a look at the other thread if you can confirm the identity of the person in the other thread in relation to those named in this will query thread and I’ll come back on Monday or sooner if I get a chance,

[G7ivp]

Re: Rectification of a Will

Hi,
Can you post the link to the previous thread, I assume that is in relation to the deceased brother? Did the deceased brothers residue become a partial intestacy, so there was a will?
I can have a look at the other thread if you can confirm the identity of the person in the other thread in relation to those named in this will query thread and I’ll come back on Monday or sooner if I get a chance,

The previous thread is: http://legalbeagles.info/forums/show...ht=#post755062 You'll see that I have to persuade the Executor that the correct course of action is to deal with the brother's share via Intestacy. The object here is the Will of the brother's sister not his own Will.

[Peridot]

Re: Rectification of a Will

Thanks, yes appreciate this is about a different estate, I will look into this further, but I’m unsure that a rectification can’t be argued without evidence of the deceased’s intentions. They may have wanted the estate to be divided in this way and not to pass to survivors only.
What evidence is there to show what the deceased’s intentions were, if any?

[Peridot]

Re: Rectification of a Will

Hi again,

In the usual course of events with nothing in the Will indicating the residue is to be paid to the survivors of a number of people, or without a substitute person/charity in the event a residuary beneficiary dies before the testator (the person who made the Will) then that beneficiary’s share lapses, creating a partial intestacy of their share of the residue. The partial intestacy would be distributed under the intestacy rules here: https://www.citizensadvice.org.uk/fa...-of-intestacy/

If all interested parties agree, (which includes the potential beneficiaries under the intestacy), then the executor could distribute in a different way to that indicated in the Will.

Rectification of a Will is a discretion that the Court has, where there is no other option, ie agreement hasn’t been reached between the interested parties. The Court can add or remove words from the Will. However in order to do so the Court must consider the following:-
• what were the testator’s intentions?
• was the Will expressed in such a way that it failed to carry out those intentions?
• was the Will expressed as it was as a result of a clerical error or the failure on the part of the draftsman to understand the testator’s instructions?

So, the court must be satisfied that the 'rectifiable error' has occurred either due to a clerical error or a failure to understand the testator's instructions.

Either way evidence would be needed to show that the testator had intended to include 'or the survivor of them' within the Will, when instructions were given.

There may be evidence of the testator’s intention in the lawyer’s attendance note taken when the instructions were given. If it was evident from the file that the testator had discussed and understood the meaning of including the words to ensure the residue was to be divided between the survivors of a number of people only then the Court could ‘insert’ those words.

If the issue is not covered in the attendance note then there would have to be some significant supporting evidence from elsewhere that it was the testator's intention to include the words.

The will preparation file should have been obtained to see if any light can be shed. Maybe the file has already been obtained and this is why they are looking to apply for a rectification as the testator’s wishes have been confirmed?

If this is about a failure of the testator to understand the effect of the Will then extrinsic evidence, from sources other than the will file, documented conversations, witness evidence etc, would be necessary to demonstrate precisely what the testator intended. Then, if it can be established
• what the testator's instructions were, and
• that the Will does not accord with those instructions
as above, a rectification could be applied by the Court. This sort of claim is far less common than the clerical error scenarios.

It seems that the residuary beneficiaries and potential other beneficiaries of this estate under the intestacy rules, may have reached agreement how they wish to divide the 3rd share?

The beneficiaries under the brother's estate would not have a say, as he had pre-deceased the testator. If he had passed away after the testator then they would potentially be interested parties in the matter of this Will distribution and would therefore have to agree to the amended distribution, or the executors would have to apply to the Court for rectification, together with strong supporting evidence that this was the intention of the deceased.

Hopefully this helps explain the situation.

[G7ivp]

A letter has surfaced from the Solicitor that drafted the Will to the Testatrix stating that: "You do not wish the Will to provide for monies to pass to your beneficiaries children".

Is this evidence of a lack of understanding by the Solicitor or a clerical error as the drafting, and subsequent death of a beneficiary, have created a Partial Intestacy?

There is no evidence to suggest that the Testatrix considered the possibility that any of the beneficiaries would die before her.

The letter went on to ask the Testatrix to read though the draft enclosed, make amendments as necessary and discuss them at the next meeting (where I assume it was signed).

It appears to me that the Solicitor was fully aware of the Testatrix's wishes but failed to carry them out (i.e. made an error in Law) and so Rectification is not available.

Further, the six month time limit on bringing an action for Rectification has passed so how likely is it that the court would allow such an application out of time?

[Amethyst]

That's a bit of an odd ( and rather convenient ) letter to have surfaced. From the little wording you have quoted it sounds more like a confirmation of instructions rather than a question but I think it would need to be seen in context.

Peridot

[Peridot]

Hi,
It would appear that the testator had expressed the wish the children of any pre-deceased beneficiary should not receive the beneficiaries share from the information in the letter. This would have been explained to her, however it is not possible to establish what she wished to happen to any pre-deceased beneficiaries legacy. Again this is something that should/would have been discussed with her but as you say if she never believed any of the beneficiaries would pass before her she may have refused to deal with the issue and thus the partial intestacy has occurred.

There may be an argument that the residue should have included the words 'or the survivor of them' for example which would have prevented the partial intestacy. However we don't know if the testator refused to have this in her Will. Does the letter not indicate there may be an issue in the event a residuary beneficiary were to pass away before her?

I suspect there may need to be evidence of her intentions when having the Will prepared. Rectification of a Will is at the Court's discretion. After the 6 mths from the Grant of Probate any claim for rectification of the Will would have to be obtain the permission of the Court to apply.

You need to obtain some face to face legal advice on this to assess the likelihood of any application to make a claim for rectification of the Will out of time, being successful, as well as discussing whether there is sufficient evidence that the Will should be rectified.

[G7ivp]

[QUOTE=Amethyst;n1392280]That's a bit of an odd ( and rather convenient ) letter to have surfaced. From the little wording you have quoted it sounds more like a confirmation of instructions rather than a question but I think it would need to be seen in context.

OK here's the whole thing with names changed to A, B, C and D:

It was nice to see you on the 23 January. I enclose a draft Will I have prepared on your behalf and I would be grateful if you would read through to check that it accords with your wishes and instructions.

At our meeting you confirmed that unfortunately beneficiary D had passed away and therefore you would like to alter your existing Will simply removing the gift to D and leaving everything equally amongst beneficiaries A, B and C. You do not, wish the Will to provide for monies to pass to your beneficiaries^’ children.

I would be grateful if you would read through the Will and if you wish to any amendments we can discuss them at our meeting on Thursday. I should like to remind you that my bill in preparing your Will £xxx.xx inclusive of VAT.

A bit more background. The Testatrix and her sister both attended the same Solicitor, together, to arrange their respective Wills. The sister had fallen out with D's huband and their only child. It is possible that the line "You do not, wish the Will to provide for monies to pass to your beneficiaries^’ children." was intended for her Will not the Testatrix in question.

Further, the Will was changed within 87 days of D's death. No change was made after B's death suggesting that the Testatrix was content to let the money pass to B's children (the testatrix survived B by over a year) but this would not have happened due to the badly drafted Will.

[Peridot]

Hi,

I’m not sure the letter demonstrates anything conclusive I’m afraid.

There appears to be a lot of speculation surrounding what the testator may or may not have wanted and supposition about the reasons for not amending the will again after B’s death.

I would still say you need to get some specialist advice on whether his should be pursued further.

sorry I can’t add anything further at this time.

[G7ivp]

Is my understanding of the following correct?

I believe that as the 6 month time limit has passed the court will have to be asked if it will allow an application out of time. If granted then an application for Rectification can proceed.

Then, all the interested parties must be contacted and their statements(?) submitted as evidence to the court.

Up to this point the costs are born by the Estate.

However, if an objection is raised, and the Rectification is granted anyway, there may be liability as to costs for the Objector.

[Peridot]

Hi,
Not always that straightforward, as with all things legal!

If the application to request an application out of time is unsuccessful then the estate would not necessarily be liable for the cost of the application. The decision on costs is at the Courts discretion so no guarantees either way I’m afraid.

As I suggested I really think you need some urgent advice to see if there would even be sufficient evidence for the Court to agree to the rectification application being made out of time, before even thinking of witness statements down the line.

Sorry, not what you want to hear probably, but this could prove costly, if the application is not appropriate. Even if the application is approved to bring he rectification application, there are no guarantees it would be successful. If it were and costs were ordered to be paid from he estate this ultimately reduces the residuary sum available for distribution too. You need advice on the likelihood of success and the cost consequences for a number of scenarios that could occur, as well as considering the effect on the sum available to be distributed in the longer term.

[G7ivp]

Perhaps I should make my position clearer; I am one of the potential beneficiaries of the Partial Intestacy. The money is not the main driver here rather a desire to see what's right being done. The Executrix kept the Will from the rest of the family and I don't believe had any intention of distributing B's share but was going to retain it for herself. I also believe that she has used a personal account to hold monies gathered from the Estate instead of setting one up for the purpose. Only when contacted via a Solicitor's letter did she acknowledge the situation - despite several letters. Now, when faced with having to pay out she is seeking the Rectification so as to legitamise, what must be, an illegal distribution of part of the estate.

[Amethyst]

Sorry I've gotten confused - the extract of the will you posted originally only mentioned b,c & d as beneficiaries of the residual estate - that new letter mentions a,b,c & d and is about removing d from the will - thus d shouldn't be in the most recent will that is being acted on, or was that later will never completed / signed etc ? And I don't know who a is. I think we have we got alphabet mix up somewhere as first post is "niece B my brother C and my nephew D" so should we switch nephew to c and brother to d there ?


Will

"My Trustees shall hold the balance of my estate remaining after such payments (hereinafter called "my residuary estate") upon trust to be divided equally amongst my niece B my brother C and my nephew D of zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz-----"

Letter ( Dated BEFORE or AFTER the Will above ?? )

At our meeting you confirmed that unfortunately beneficiary D had passed away and therefore you would like to alter your existing Will simply removing the gift to D and leaving everything equally amongst beneficiaries A, B and C. You do not, wish the Will to provide for monies to pass to your beneficiaries^’ children.

( hopefully it's not just me being thick there lol )

[Amkmeao]

Can someone explain the term "lapsed" ... ?
My brother died last year then my father died this year... has my brother's name lapsed... or will his offspring inherit ?