Incorrectly drafted Will amended by the Court to accord with the Deceased's intentions
By James Wright, Solicitor in the Will, Trust and Estate Disputes team
In the recent case of Mundil-Williams v Williams [2021] EWHC 586 (Ch) which was heard on 9 and 10 March 2021, Keyser HHJ decided to use the Court’s power (as confirmed in Marley v Rawlings [2014] UKSC 2) to exclude some words from a disputed Will and not revert back to the previous Will from 1990.
The deceased died in September 2017, leaving four sons and a farm, which was the main asset of the estate. One of his sons took over the running of the farm prior to 2014, when the deceased executed a new Will.
The deceased provided his instructions verbally to a secretary, who then passed the notes to a member of the probate department to prepare the Will. The deceased wished for his son who had taken over the running of the farm to receive an agricultural tenancy and 62.5% of the residue. However, this was not how the Will was drafted and instead, the above son received the farm outright and the remaining 3 brothers were only to receive 12.5% each of the residuary estate, which did not include the farm. The Will was sent to the deceased who did not raise any concerns and duly executed the Will.
As a result, one of the disinherited sons challenged the Will on the basis that it did not reflect the deceased’s wishes, which were expressed to both his family and the solicitors. The relationships within the family had not changed and the deceased showed no sign of changing his mind. Keyser HHJ agreed and decided to exclude some words from the 2014 Will and admit an amended version to probate, rather than admit the previous Will from 1990.
This judgment is important for two reasons. Firstly, when giving instructions for a Will and executing the Will, the testator must check that they are happy with its content and if they are unsure of the wording in any way, they must ask the solicitor to confirm.
Secondly, Keyser HHJ, whilst ruling that the Will did not adhere to the deceased’s wishes and intentions, held that the previous Will from 1990 would not have solved the issue and was not how the deceased wanted his estate to be divided, so he used the Court’s power to amend the wording of the 2014 Will, to reflect the true wishes initially provided by the deceased in 2014.
Perhaps this claim could have been brought as a rectification claim rather than a validity claim, however, the deceased’s true intentions are now in place.
The judgment can be found here: https://www.bailii.org/ew/cases/EWHC/Ch/2021/586.html
"I am satisfied that the omissions proposed by Mr Thomas would closely accord with the intentions of the testator and would do so far more closely than would admitting the 1990 Will to probate." HHJ Keyser QC”
