What happens when Wills go wrong
Posted on 16th November 2019
When you write a Will you can feel confident that have clearly explained what you want to happen to your estate and that your wishes will be carried out.
However, it’s important to understand that words can sometimes have unexpected legal meanings.
It’s important to ask questions, because the right words must be used to avoid any misunderstandings or challenges.
There are three types of mistake that can be made when your Will is written:
meaning - where a word or term is deliberately included but you have misunderstood its legal meanin
content - a word or term is accidentally included or left out
motive - when you have deliberately included a word or term whose meaning you understood, but its legal effect is not what you intended.
If your Will includes any of these mistakes, it can be difficult to solve the problems that are caused. However, there are a number of options to make sure your wishes are carried out.
If your Will doesn’t properly reflect your wishes and your executor can find out what you actually intended, it can be changed by construction. This can be done by a solicitor and a court order isn’t needed.
To do this, the solicitor considers:
the ordinary meaning of the words used
the overall purpose of your Will
other provisions you have made in your Will
what was known or assumed at the time your Will was executed
Rectification applies when it can be clearly established that there is a difference between the words used in your Will and your intention.
This option doesn’t look at the meaning of your Will but is used to change it so that it reflects your true intentions. A court order is needed, and rectification of a Will can only be done within six months of your death.
Beneficiaries of your estate can be changed within two years of your death. This can only be done if all the existing beneficiaries agree.
Content - your Will can be corrected by construction if it includes the wrong address of a property or the wrong name for a beneficiary, for example. Your executor will know that you owned a property at another similar address or the correct name of the person you intended to include in your Will.
Meaning - if you said in your Will that you wanted your estate to be divided between your ‘issue’, wrongly assuming that this would include your stepchildren, this can be changed by construction or rectification.
Motivation - you might plan to leave your house to your partner and your farm to your son, believing that the farm will benefit from agricultural property relief. If the relief isn’t available, there could be unforeseen inheritance tax charges. In cases like these your Will could be changed by variation.
The best way to avoid these types of mistakes is to take the advice of a professional Will writer. You can find out more from the Society of Will Writers.
Tagged as: Wills
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