Rectification of a Will

[G7ivp]

The Administration of Justice Act 1982, section 20 Rectification states:

(1)If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence—

(a)of a clerical error; or

(b)of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.

Would the omission of words to a clause in a Will be deemed a "clerical error" or an error in Law?

In "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-----" could it be argued that the words "who survive me" have been left off and subsequently change how the estate is distributed?

TIA.

[Kati]

Re: Rectification of a Will

tagging [MENTION=85500]Peridot[/MENTION] [MENTION=39710]des8[/MENTION] [MENTION=141]enaid[/MENTION] ??

[Amethyst]

Re: Rectification of a Will

IS the zzzzzzzzzzzzzzzzzzzzzz actually anything ? that would be where it normally says "as shall survive me" then is there anything after that at all ? Are the niece, brother and nephew under 18, living etc ? The word "of" before you've put the zzzzzzzzzz could indicate something has been missed off - but not sure if zzzzzz means just a blank space or different words... maybe you can scan that part of the will so it can be seen in context actually - might be easier - or type the following part to see how it works together. In these kind of things context really is everything.

[Kati]

Re: Rectification of a Will

IS the zzzzzzzzzzzzzzzzzzzzzz actually anything ? that would be where it normally says "as shall survive me" then is there anything after that at all ? Are the niece, brother and nephew under 18, living etc ? The word "of" before you've put the zzzzzzzzzz could indicate something has been missed off - but not sure if zzzzzz means just a blank space or different words... maybe you can scan that part of the will so it can be seen in context actually - might be easier - or type the following part to see how it works together. In these kind of things context really is everything.

I read it as the zzzzzzzzzzz was an address (may be wrong tho') xx

[Amethyst]

Re: Rectification of a Will

Aye me too at first but then not sure where the missing words are ... after the address ? ... and do brother, niece and nephew live at same address ... and if Neice and nephew are brothers issue, presumably brother is over 18 at time of making will so why on trust ?

[enaid]

Re: Rectification of a Will

Survival clause - For every bequest that you make under your will, it should be considered whether you want the named beneficiary to receive the bequest only if he or she survives you. If this is the case, then the words "if he (or she) survives me" must be added after each such bequest. If you don't perform this step, the bequest will automatically pass to the beneficiary's probate estate if the beneficiary does not survive you.

[G7ivp]

Re: Rectification of a Will

IS the zzzzzzzzzzzzzzzzzzzzzz actually anything ? that would be where it normally says "as shall survive me" then is there anything after that at all ? Are the niece, brother and nephew under 18, living etc ? The word "of" before you've put the zzzzzzzzzz could indicate something has been missed off - but not sure if zzzzzz means just a blank space or different words... maybe you can scan that part of the will so it can be seen in context actually - might be easier - or type the following part to see how it works together. In these kind of things context really is everything.

The zzzzzzzz is simply me reacting the beneficiary's address

The brother predeceased the testator both the other beneficiaries are over 18 and living.

There is nothing else in the clause or will dealing with the distribution.

[Amethyst]

Re: Rectification of a Will

The zzzzzzzz is simply me reacting the beneficiary's address

The brother predeceased the testator both the other beneficiaries are over 18 and living.

There is nothing else in the clause or will dealing with the distribution.

Are the Niece and nephew the children of the deceased Brother ?

If there’s no survival clause then the estate would be split the 3 ways but the brothers bit would go to his estate. Is that the issue as with a survival clause it would change to 50/50 between niece and nephew without going through the estate of the brother ?

[G7ivp]

Re: Rectification of a Will

The zzzzzzzzzzzzzzzzz is just me redacting the address of the third beneficiary. There is nothing missed off. all beneficiaries are over 18, the brother predeceased the testator and the niece and nephew are not his children nor are they siblings. This is the only clause in the will that deals with distribution of the estate.

[Amethyst]

Re: Rectification of a Will

Is there a particular reason you feel that the words "who survive me" have been left off in error and that it wasn't the testators intention not to include it ?

Does the deceased Brother have Children ? Guessing the query/issue is whether the estate goes to the brother's estate / children etc or is lapsed and redistributed between the niece & nephew.

[G7ivp]

Re: Rectification of a Will

Survival clause - For every bequest that you make under your will, it should be considered whether you want the named beneficiary to receive the bequest only if he or she survives you. If this is the case, then the words "if he (or she) survives me" must be added after each such bequest. If you don't perform this step, the bequest will automatically pass to the beneficiary's probate estate if the beneficiary does not survive you.

So would the omission of such a survival clause be a clerical error or an error in Law?

[Amethyst]

Re: Rectification of a Will

It may not be either ?

[G7ivp]

Re: Rectification of a Will

Are the Niece and nephew the children of the deceased Brother ?

If there’s no survival clause then the estate would be split the 3 ways but the brothers bit would go to his estate. Is that the issue as with a survival clause it would change to 50/50 between niece and nephew without going through the estate of the brother ?

No the niece and nephew are not children of the brother.

The issue is one of Rectification - which if successful would allow a survival clause to be inserted and so. as you say, would distribute the estate between the niece and nephew. As I understand it without a survivor clause the brother's share would have to be dealt with under the Intestacy rules.

[Amethyst]

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 ?

[MENTION=85500]Peridot[/MENTION] 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.

[G7ivp]

Re: Rectification of a Will

Is there a particular reason you feel that the words "who survive me" have been left off in error and that it wasn't the testators intention not to include it ?

Does the deceased Brother have Children ? Guessing the query/issue is whether the estate goes to the brother's estate / children etc or is lapsed and redistributed between the niece & nephew.

It is the opinion of the Executor, who is the niece, that the testator intended the estate to be shared between the surviving beneficiaries only and not distributed among the wider family via Intestacy (which I believe is the proper course).