Q&As

The widow of the testator was left a life interest in a property and 25% of income from a trust established by the Will in the following terms: ‘If I shall still own the property...at the date of my death I direct that my Executors...’. The property was subsequently sold, and an alternative matrimonial home purchased, but the Will clause was not amended. The new property is not referred to in the Will and has fallen into residue which makes no provision for the widow. Other than a deed of variation, is any other option available to remedy this situation?

read titleRead full title
Produced in partnership with Emma Holland of Stewarts Law
Published on LexisPSL on 09/07/2020

The following Wills & Probate Q&A produced in partnership with Emma Holland of Stewarts Law provides comprehensive and up to date legal information covering:

  • The widow of the testator was left a life interest in a property and 25% of income from a trust established by the Will in the following terms: ‘If I shall still own the property...at the date of my death I direct that my Executors...’. The property was subsequently sold, and an alternative matrimonial home purchased, but the Will clause was not amended. The new property is not referred to in the Will and has fallen into residue which makes no provision for the widow. Other than a deed of variation, is any other option available to remedy this situation?
  • Rectification
  • Want of knowledge and approval
  • Negligence
  • The Inheritance (Provision for Family and Dependants) Act 1975

The disappointed widow may wish to consider the availability of various remedies.

Rectification

If it is considered that the testator intended (at the point the Will was executed) to make these gifts regardless of whether the specified property had been sold and replaced, a claim could be made for rectification under section 20 of the Administration of Justice Act 1982 (AJA 1982). This provides:

‘…(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.’

As noted in Practice Note: Validity of Wills—rectification of Wills:

  1. any application for rectification should be made within six months of the date of the grant of representation relating to the deceased’s estate, otherwise court permission will be required

  2. the court’s power of rectification is discretionary and it may be reluctant to exercise it if there is an alternative

Popular documents