How to Challenge a Will Made Under Mistake

Challenging a will on the basis that it was made under a mistake is a complex area of English law. Unlike straightforward errors in wording or execution, mistakes that go to the validity of a will often raise questions about whether the document reflects the true intentions of the person who made it (the testator), or whether legal principles such as rectification or testamentary capacity apply. This guide explains the relevant legal concepts, practical steps, time limits and likely outcomes when seeking to challenge a will in England and Wales because of a mistake.

What Do We Mean by a “Mistake” in a Will?

A mistake in a will can take several forms. Some are clerical or drafting errors, such as a name being misspelt or a clause incorrectly drafted. Others are related to a misunderstanding held by the testator when making the will, such as a mistaken belief about a person's identity, relationship, or entitlement.

Legal principles treat different types of mistakes differently:

• Drafting errors and clerical mistakes: These occur when the will fails to reflect the testator's intentions due to how it was written or executed. The court has a specific remedy for this called rectification under the Administration of Justice Act 1982.
• Mistaken beliefs held by the testator: These are errors in the mind of the person making the will. A mistake by itself does not automatically make a will invalid. However, in certain situations, it may contribute to a broader argument that the testator lacked the necessary mental capacity or was influenced improperly.

Legal Framework and Key Principles

Testamentary Capacity

Under established legal principles from the case Banks v Goodfellow (1870), a person making a will must have sound mind, memory and understanding. They must:

• Understand that they are making a will and its effect.
• Comprehend the extent of their assets.
• Appreciate the claims of people who might expect to benefit.

A mistake that stems from confusion or an inability to appreciate fundamental facts can sometimes form part of a claim that the testator lacked testamentary capacity at the time of making the will. However, in practice, courts are reluctant to say that a simple mistake of fact, without evidence of an underlying condition affecting the mind, invalidates a will. This was confirmed in Ball v Ball, where a mistaken belief about past events did not, by itself, amount to incapacity.

Rectification of a Will

Where a will does not reflect the testator's true intentions due to a clerical or drafting error, the court can order rectification. This is a distinct process from challenging the validity of the will itself.

Under section 20 of the Administration of Justice Act 1982, the High Court may rectify a will if it is clear that the terms of the will, as drafted, do not carry out what the testator meant to include, because:

• A clerical error occurred; or
• The drafter failed to understand the instructions given by the testator.

Examples include cases where names have been transposed, spells incorrectly, or where the distribution of the estate was mistranscribed. Evidence such as the will drafter's notes or witness statements may be required to support a rectification application.

RECTIFICATION IS MOST COMMONLY INVOKED for drafting errors - not for mistaken beliefs held by the testator.

When Mistake Might Invalidate a Will

In limited circumstances, a mistake can form part of a successful challenge to a will's validity:

1. Mistake Leading to Lack of Testamentary Capacity

If a mistake is so serious that it shows the testator did not understand what they were doing when making the will, it may contribute to a capacity challenge. That requires:

• Evidence that the mistake went beyond ordinary confusion.
• Medical or expert testimony showing impairment of mental faculties at the relevant time.

2. Mistake Resulting from Fraudulent Calumny

In rare cases, a mistake arises because someone deliberately misled the testator about important facts to persuade them to include or exclude a beneficiary. This is known as fraudulent calumny. The court may set aside a will if it is proved that false representations were made to the testator to influence their intentions.

3. Mistake Combined With Other Grounds

Sometimes a mistake is part of a broader challenge grounded in:

• Lack of knowledge and approval: where the testator did not understand the will's content.
• Undue influence: where the mistake arises because someone pressured the testator.

A mistake on its own will rarely invalidate a will in the absence of these additional elements.

Practical Steps to Challenge a Will on Grounds of Mistake

The procedure for challenging a will because of a mistake generally follows these steps:

Step 1: Identify the Nature of the Mistake

Determine whether the issue is:

• A drafting or clerical error; or
• A deeper mistake in understanding held by the testator.

Errors that can be corrected by rectification should be treated as such early in the process.

Step 2: Consult a Specialist Solicitor

Seek advice from a solicitor experienced in disputed wills and probate. They can assess whether you have a valid ground to apply for rectification, or whether the mistake supports a broader challenge on capacity or undue influence.

Step 3: Gather Evidence

Evidence for rectification may include:

• The solicitor's file and draft wills.
• Notes taken during the will meeting.
• Witness statements about what the testator said or meant.

For a capacity or influence challenge, medical records and expert reports may be crucial.

Step 4: Lodge a Caveat or Issue Court Proceedings

If probate has not yet been granted, you may lodge a caveat to temporarily prevent the grant being made, preserving your ability to raise a challenge. If probate has already been granted, you may need to issue a claim in the High Court.

Time Limits for Challenging a Will

There are strict time limits for will challenges:

• For most will validity challenges, including rectification or capacity claims, you must act within six months of the date probate is granted.
• In exceptional circumstances, the court may allow a late challenge, but this is uncommon and requires strong justification.

Possible Outcomes

When a mistake leads to a successful claim, outcomes may include:

• Rectification of the will so it reflects the testator's true intentions.
• Declaration that the will is invalid, where the mistake shows lack of capacity or was induced by serious misconduct.
• Reinstatement of an earlier valid will, if the current one is invalid.
• Application of intestacy rules, if no valid will exists.

Risks and Practical Considerations

Challenging a will is not straightforward. Consider the following:

• Evidence burden: Mistake-based claims often require strong supporting evidence, particularly for capacity or fraud.
• Costs: Legal costs can be substantial, and if the claim fails you may be ordered to pay the other side's fees.
• Emotional strain: Disputes involving family members can be emotionally challenging.

Common Questions

Can a will be invalid just because the testator got something wrong?
No. A simple mistake in belief, without more, does not invalidate a will. It must connect to legal grounds such as incapacity, fraudulent influence, or clerical error.

What is rectification?
Rectification is a court order correcting a will that does not reflect the testator's intentions due to drafting errors or misunderstandings.

Do I need to act quickly?
Yes. You generally have six months from the grant of probate to bring a challenge.

Key Takeaways

Challenging a will on the basis of a mistake requires careful analysis of the nature of the mistake and how it affects the validity of the document under English law. While ordinary errors in belief do not automatically invalidate a will, there are legal mechanisms - including rectification, capacity challenges and claims of fraudulent influence - that may apply in specific circumstances. Acting promptly, collecting strong evidence and seeking specialist legal advice are essential steps in effectively addressing these disputes.