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Interpretation of wills

Interpretation of wills

If a will or a clause in a will is not written clearly, the reader may not be able to tell what the testator intended and the executors will not know how to correctly administer the will.

What action can be taken if the will is unclear?

Problems with the interpretation of wills arise most commonly with home made wills or wills otherwise written without professional advice. It is one of the good reasons why a will should always be written by a professional.  A poorly drafted will leads to uncertainty - it might be unclear who the beneficiaries are or unclear what the assets referred to are. Where a will is unclear, an executor should take professional advice as early as possible.

There are a number of steps that can be taken where a will is not clear which can include applications to court if agreement cannot be reached.  Our expert team will discuss the options available to you and help you to reach agreement where possible.

 

 

Applications for construction or rectification

If agreement cannot be reached or the problem is too great to overcome informally,  it may be necessary to apply to the court for an order.

If the problem is that the will cannot be interpreted due to poor wording (most common with homemade wills), the court can be asked to make an order as to the correct construction (interpretation) of the will.  Where such an application is made the court is invited to consider the words used and what the testator meant by those words.

A professionally drawn will should not fail for lack of clarity but problems can arise with  administrative or drafting errors.  In many cases of administrative error, the executors and beneficiaries will agree what was intended and,  essentially, ‘rectify’ the errors by agreement.

If agreement cannot be reached,  or an executor remains concerned about disagreement arising in the future,  it is possible to apply to the court to ‘rectify’ the problem.  This is known as an application for rectification of a will.  When asked to rectify a will, the court will consider external (extrinsic) evidence as to what the testator intended – such as notes taken by the will drafter when instructions were given – and make an order which gives effect to those instructions.

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Negligence

Sometimes the problem with a will is not one of administrative error but one where the will drafter has failed to understand and action the testator's instructions or has made a fatal error which renders the will itself or a clause in the will invalid.

In theses cases, an application for rectification or construction is not likely to be appropriate and instead an action must be taken for negligence against the will draftsman.   These actions are usually taken on behalf of the ‘disappointed’ beneficiaries (those who would have benefited, had the will been correctly drawn).  Our expert team can help advise as to the most appropriate course of action.

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