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Will errors - honest mistake or gross negligence? Does it matter?

Our People - Andrew Guile
11 February, 2013

Yes, it does, but the difference between the two may seem strange. Here’s the position in law –

If a will writer makes a legal mistake, i.e. uses a clause thinking that it does ‘A’ where in fact it does ‘B’ then the law does not allow rectification of the will to give effect to the intentions of the maker.

However, if that same will writer accepts that they did a bad job and didn’t give proper consideration to what they were doing (i.e. were grossly negligent) then that is deemed a ‘clerical error’ and rectification is allowed.

So, when faced with a situation where a will writer is told that a will was drafted wrongly and not in accordance with the maker’s intentions, what does he/she do? If they say that they did their best, thought carefully about what they drafted but got it wrong, no rectification is allowed and they get sued for negligence. If they, however, state that they were grossly negligent and didn’t bother thinking carefully about the drafting, that’s a clerical error and can be rectified. Rectification is easier than suing so they avoid a claim against them.

This makes no sense, but that is the current state of the law. In a recent case of Kell -v- Jones the High Court had just such a scenario to consider but sadly did not take a different approach, feeling bound by existing law.

Surely, it would make more sense for rectification to follow if it can be proven that the will did not give effect to the wishes of the maker? If that issue alone was the key factor, the extent of the will writers negligence would be irrelevant.  It makes more sense to focus on giving effect to the maker’s intentions than forcing beneficiaries to sue their will writers. Rectification is quicker, cheaper and far less stressful. Better all round.

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