Though it is not extremely common, it does happen that Wills, even those prepared professionally, contain mistakes or errors. When those are discovered only after the testator passed away, this can cause serious problems to expectant beneficiaries. There are two central issues with respect to errors or mistakes in Will drafting. Firstly, can they be corrected? Secondly, what should have been expected from the lawyer or other person who was drafting the Will and can there be a claim in professional negligence against them?
If a mistake in a Will has an adverse impact, then an application to the court can be made to rectify the Will. The application must be made within six months of probate being granted. The application is made under the Administration of Justice Act 1982. A Will can be rectified if the court is satisfied that the mistake or error is a result of a clerical error, or a failure to understand the instructions of the testator by the person who drafted the Will.
Historically, the majority of clerical errors have involved typographical mistakes. This changed however with the ruling in the case of Marley v Rawlins. Here, the Wills of a husband and wife had identical terms. However, due to an error of the solicitor, the husband signed the wife's Will and vice versa. Normally , as a document not signed by the testator, the Will, strictly speaking, could not be a valid Will. It could therefore not have been rectified. The Supreme Court disagreed however and held that the mistake with signatures could be considered a clerical error and the Wills were capable of rectification. The court laid out a very wide definition of a clerical error, which now includes "office work of a relatively routine nature, such as preparing, filing, sending, or organising the execution of a document."
In Brooke v Purton a solicitor included a standard clause for the deceased's wife, despite the fact that the testator was not married. Normally the clause would have had the effect of completely undermining the intention of the testator. Though the court ultimately decided this case on the basis of construction to achieve a just result, it confirmed that rectification could also have been used under the Administration of Justice Act 1982. It has therefore potentially widened the scope of clerical error even further.
If a rectification is available, it is generally the best option for the beneficiaries who are adversely affected. If a Will is capable of being rectified, the beneficiaries suffer no loss and hence have no right to a further claim against the professional who made the mistake. If rectification is however not available, there may be grounds to bring a professional negligence claim against the advisers or drafters.
Parties can expect that solicitors will draft Wills within a reasonable period of time and where there is a death bed case, that they will do so with utmost urgency. Solicitors are not however under a duty to chase clients who fail to execute Wills. As long as a solicitor provides clear instructions on how a Will must be executed, he needs not make sure that the testator follows those instructions unless the Will is then returned to the solicitor for safe keeping. The solicitor or adviser is under a duty to advise the testator properly on the issues pertinent to the Will, including the effect of marriage. He is however not under a duty to make sure that the advice is followed.