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  1. #1
    G7ivp's Avatar

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    Default Rectification of a Will

    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.

  2. #2
    Kati's Avatar

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    Default Re: Rectification of a Will

    tagging @Peridot @des8 @enaid ??
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  3. #3
    Amethyst's Avatar

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    Default 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.
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    Kati's Avatar

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    Default Re: Rectification of a Will

    Quote Originally Posted by Amethyst View Post
    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
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  5. #5
    Amethyst's Avatar

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    Default 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 ?
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    enaid's Avatar

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    Default 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.


    ​​​​

    https://www.carersuk.org/

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    G7ivp's Avatar

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    Default Re: Rectification of a Will

    Quote Originally Posted by Amethyst View Post
    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.
    Last edited by G7ivp; 12th January 2018 at 17:34:PM. Reason: additions

  8. #8
    Amethyst's Avatar

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    Default Re: Rectification of a Will

    Quote Originally Posted by G7ivp View Post
    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 ?
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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  9. #9
    G7ivp's Avatar

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    Default 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.

  10. #10
    Amethyst's Avatar

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    Default 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.
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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  11. #11
    G7ivp's Avatar

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    Default Re: Rectification of a Will

    Quote Originally Posted by enaid View Post
    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?

  12. #12
    Amethyst's Avatar

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    Default Re: Rectification of a Will

    It may not be either ?
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

    Any advice I provide is given without liability, if you are unsure please seek professional legal guidance.

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  13. #13
    G7ivp's Avatar

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    Default Re: Rectification of a Will

    Quote Originally Posted by Amethyst View Post
    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.

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    Amethyst's Avatar

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    Default 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.
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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    G7ivp's Avatar

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    Default Re: Rectification of a Will

    Quote Originally Posted by Amethyst View Post
    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).

  16. #16
    G7ivp's Avatar

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    Default Re: Rectification of a Will

    Quote Originally Posted by Amethyst View Post
    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.

  17. #17
    Peridot's Avatar

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    Default 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,
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

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    G7ivp's Avatar

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    Default Re: Rectification of a Will

    Quote Originally Posted by Peridot View Post
    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.

  19. #19
    Peridot's Avatar

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    Default 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?
    Last edited by Peridot; 13th January 2018 at 11:06:AM. Reason: Typo
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

  20. #20
    Peridot's Avatar

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    Default 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.
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

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