What can you do if it is clear that the will does not properly reflect the intentions of the will maker? What if this situation is due to some error in the drafting process?
The court has the power to alter the terms of a will if it believes that the document does not actually carry out the true intentions of the will-maker due to some clerical error on the part of the will drafter or else a failure on his part to understand his instructions.
This power is limited in time, and if it is to be exercised at all, an application for the same must be made within 6 months of the date of the grant of probate.
It is first necessary to prove that the will fails to carry out the will-makers intentions. Whilst the burden of proof is the ordinary civil standard, the severity of that test is quite harsh in the circumstances, especially if the will has been professionally drafted.
Once this is accepted, it is then necessary to prove that the situation arises from either a clerical error or else a failure of the will-drafter to understand his instructions.
In many instances, given the implications of the laws of negligence, it is wise for the will drafting solicitor to admit his clerical error, or inadvertent failure to understand his instructions, and to seek rectification of the will in order to avoid (or mitigate) a claim in damages.
If an application to rectify will is made out of time, the court has a discretion to allow the case to continue in the same circumstances as it would an Inheritance Act claim made out of time.