It is fairly rare, but we are sometimes requested to give advice as to whether a correction can be made in a will, as to an error that has occurred.
In our experience, this is nearly always when a homemade will or internet will has been made by the testator.
It very much depends on what the correction has to be, the more substantial the less likely the correction will be valid, as there is no straightforward solution to these types of problems. Much will depend upon the wording of the will, and the circumstances surrounding how it was written.
The first step is to try and determine whether a mistake has been made by the person who drafted the will.
Often the correction can be where the wrong charity has been nominated for a specific gift, or indeed the wrong grandchild or remoter issue of the testator has been incorrectly referred to.
It may be that the person who has drafted the will (presumably a solicitor or will writer, in the case of a professional will), rather than the homemade will referred to above. If that person has failed to understand the testator’s instructions, and has mistakenly included for example the charity, there is a legal remedy known as ‘rectification’. There is a cost associated with this, but often if a professional advisor has prepared the will, the original firm will pay for the application if they are responsible for the mistake. If the instructions were properly taken, and the mistaken e.g. charity is properly described, then the will is valid, and it will be very difficult to challenge, since the charity will be legally entitled to the gift.
However, if there is some certainty that a mistake has been made on the part of the testator, it may well be worthwhile exploring the charity to which is referred to in the will, but the incorrect charity will make what is known as ‘a ex gratia payment’ to the charity connected to the testator.
This is simply a question of providing the evidence to the appropriate charities, but again this can be very difficult, because charities are regulated by certain acts, and they are legally obliged not to give up donations.
If, however the charity is prepared to consider this under a moral obligation to do so, it is likely that the charity in question may require the Charity Commissioner’s approval.
If no moral obligation is accepted, the charity named in the will may consider making a payment to the testator’s charity to avoid any costs. This again is all part of negotiation, and very much depends on the circumstances of each particular case.
In some rare cases, if in the example above the charity is described incorrectly in any way, resulting in an ambiguity over the testator’s intentions, then it maybe possible to rely on what is known as the ‘Royal Sign Manual’ procedure. This is used for giving effect to charitable gifts in certain circumstances, such as where the testator has named what appears to be a charity, but on further investigation, none is found.
This is a rare procedure, and is not frequently used, since other avenues are usually available. The wording of the will is of course critical.
The most common mistake for rectification that we have seen over the years, is in fact the problem of somebody leaving money to one established charity, but using the address or registered charity number of another, or indeed another charity that is no longer in being.
The implications of such errors can be costly, particularly if there is a dispute as to who should receive the bequest.
In such situations if a professional has written the will, it would normally include a registered charity number, and/or the charity’s address, which is often helpful to identify the ‘correct’ charity.
It is important to note that the burden in obtaining the information is on the claimant, as the party who thinks the charity is not identified properly, to produce convincing proof that the will does not reflect the true intentions of the testator.
As indicated in the main body of this article, if there is compelling evidence that the wrong charity has been named, both charities may agree to rectify the error, by entering into a formal deed of rectification.
However, if there is a dispute, an application to the Court maybe necessary. This could be very costly, and there is no guarantee it would be successful. Hence, the suggestion of trying to reach some settlement in rectification situation.
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