Amendment Of A Will Due To Drafting Error – A Recent Illustration In Angelova V Kershaw (2024)

We have previously discussed how the validity of a will can be challenged on specific grounds such as capacity, fraud and undue influence.

We have also talked about how you can use a Deed of Variation in limited circumstances.

But what happens if there has been a mistake in the drafting of the will which does not reflect the intentions of the deceased?

The court has power to rectify a will under section 20 of the Administration of Justice Act 1982:

(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

An example of how this works in practice was illustrated in the case of Angelova v Kershaw (2024)

The Facts

Mr Peter John Bryant died on 8 December 2020 having left a will dated 7 June 2020.

The Claimant is the unmarried partner of Mr Byrant.

Peter Kershaw and David Clark were appointed as executors under the will and to whom a grant of probate was made on 29 October 2021.

The will was prepared by a firm of solicitors, Gorvins LLP.

The will created a discretionary trust (BCT Trust). The beneficiaries of the BCT trust including

“My said wife Nina Angelova provided that we were married at the date of my death”

The Proceedings

Ms Angelova sought to have the will rectified so that it would read as follows

“Nina Angelova, whether or not we are married at the date of my death”

None of the other beneficiaries responded to the claim.

The will files from Gorvins were produced as well as a statement from the actual solicitor, but she could not recall anything of the matter.

The starting point for a court is to ask these questions:

1. What were the testator’s intentions in relation to the provisions which it is sought to rectify?
2. Is the Will expressed in such a way which fails to carry out those intentions?
3. Is the Will expressed in such a way as a result of a clerical error or a failure on the part of someone to whom the testator gave instructions to understand those instructions?

As to what can amount to a ‘clerical error’ it was summarised as

“The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert. … The remedy is only available if it can be established not only that the will fails to carry out the testator’s instructions but also what those instructions were.”

Extensive examination of the will file was made by the court and it was clear from instructions in a document called Revised Plan for Beneficiaries that Mr Bryant intended Ms Angelova to inherit under the BCT trust whether they were married or not (unlike a legacy of €750,000 under the will which was dependent on marriage).

The final version of the will did not reflect this whereas the final version of the Letter of Wishes did.

The executors conceded that this was a clearly a clerical error. So the only issue was whether the Will had failed to carry out Mr Bryant’s intentions as a result of the clerical error.

Submissions were made by the executors in defence and the judge’s findings in favour of Ms Angelova was as follows:

1. Thus, although he was not a passive recipient, he did not read the draft Will with care and attention to every single detail in it. In addition, it is not to be inferred that whenever Ms Thornley mentioned a provision in the draft Will to him, he returned to it to read it.
2. Furthermore, his active involvement was such that if he had noticed the deviation from his instructions in the Revised Plan, he would in my judgment have raised this with Ms Thornley. There is no record of any telephone calls between them after she had sent him the final drafts.
3. It is not to be inferred that following his detailed examination of the drafts sent to him on 29 April 2020, and his extended correspondence (and telephone call on 5 May 2020), the testator would have returned to the drafts with the same level of attention as he gave them earlier. It is equally likely that he would have assumed that Ms Thornley had given effect to his instructions. In any event, if he had carried out a further review that would have extended to the LoW, and the testator would have noticed the Will’s inconsistency with the LoW.
4. If the testator’s intentions had changed when he came to execute the Will, he would in my judgment have asked Ms Thornley also to amend the LoW. The fact that he did not do so is very strong evidence that he did not notice that the Will did not reflect the Revised Plan.

Final Words

Ms Aneglova’s case rested significantly on the will file from Gorvins, especially since with the passage of time, the solicitor dealing with the matter may not recall any of the details of the matter or discussions with the deceased given the fragility of memory. It is always advisable to have a will drafted by solicitors, although as can be seen in this case, mistakes can still happen. But you have the added assurance that solicitors will have the benefit of indemnity insurance and it may well be the executors look to Gorvins for any costs awarded in this case as a result of their negligence.

Our dispute resolution experts are here to help if you need advice on rectifying a will or dealing with disputes about its validity. Whether you’re an executor, beneficiary, or family member, we’ll work with you to protect your rights and achieve the best possible outcome. To speak to one of our legal experts call 0330 822 3451 or request a callback.