This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Learn how to challenge a will made under mistake in England and Wales. This comprehensive guide explains court rectification, lack of knowledge and approval, evidence requirements, time limits, procedural steps, and practical considerations for addressing errors in wills.
A will sets out how a person's assets are distributed after their death. Occasionally, a will may contain a mistake - for instance, it may fail to reflect the testator's intentions, include clerical errors, or misidentify beneficiaries. In England and Wales, such mistakes do not automatically render a will invalid. However, there are legal avenues to address and challenge wills affected by error, including correction of the document or other forms of legal claims.
This article explains the relevant legal principles, the practical steps you might take, time limits, and what outcomes you can expect if you believe a will was made under a mistake.
What Constitutes a Mistake in a Will?
Mistakes in wills can take several forms:
- Clerical or drafting errors: Typos, incorrect names, or failure to record the testator's actual instructions.
- Misunderstanding of instructions by the drafter: A will drafter (for example, a solicitor) misinterprets what the testator intended to include.
- Testator's error: The person making the will was under a false belief about facts that influenced the content of the will.
A mistake does not include simple dissatisfaction with the terms of a will. A will cannot be challenged merely because a family member expected a different distribution.
Grounds for Challenge When a Will is Made Under Mistake
Court Rectification - Correcting the Will
The main legal route for addressing a will that does not reflect the deceased's intentions due to a mistake is rectification.
Under section 20 of the Administration of Justice Act 1982, the court can correct a will that fails to give effect to the testator's actual instructions. This may arise when evidence shows that:
- The will's wording does not match what the testator instructed the drafter to do, or
- A clerical error was made when preparing the document.
The court's power to rectify focuses on the testator's true intentions, not on whether the testator was simply disappointed with the result. In Marley v Rawlings, the Supreme Court confirmed that rectification can apply even where formal execution requirements were imperfect if it reflects the testator's intention.
Lack of Knowledge and Approval
Another basis linked to mistake is where the testator did not know and approve the contents of the will. This is a technical ground of challenge where the person making the will may have signed without understanding what was written or did so under a misunderstanding that means they did not genuinely approve of the document.
Unlike lack of testamentary capacity, this concept focuses on knowledge and awareness of the contents at the time of signing. It may overlap with claims of undue influence or mistake, but it is distinct in that the court may find that the testator simply did not know what was in the will.
When a Mistake Does Not Invalidate a Will
Legal authorities suggest that a mere factual mistake by the testator (for example, an incorrect belief about another person's conduct) usually does not invalidate a will on its own. In Ball v Ball (2017), the High Court held that a mistake about surrounding facts was insufficient to render a will invalid unless it demonstrated lack of capacity or duress.
This illustrates an important principle: mistakes must be linked to a recognised legal basis such as rectification, lack of knowledge and approval, or invalid execution to succeed as grounds for challenge.
Practical Steps to Challenge a Will Made Under Mistake
1. Obtain the Will and Probate Documentation
If probate has been granted, obtain a certified copy of the will and the grant of probate from the Probate Registry. If probate has not yet been granted, consider applying for a caveat to pause grant of probate while issues are investigated.
2. Gather Evidence of the Mistake
Evidence is critical. Helpful documents might include:
- Notes or correspondence from the will drafter.
- Draft versions of the will.
- Statements from people familiar with the testator's intentions.
- Expert reports where interpretation of legal terms or formalities is in dispute.
For rectification claims, the court will look for objective evidence showing the mistake in drafting relative to the testator's real instructions.
3. Seek Specialist Legal Advice
Claims involving will mistakes can be complex. A solicitor experienced in contentious probate can assess whether rectification or another form of challenge is appropriate, advise on likely outcomes, and assist in preparing the necessary court applications.
4. Consider Alternative Claims
If the mistake has caused financial loss, separate claims such as professional negligence against the will drafter may be available. In other situations, you may have grounds for a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if you have been left without reasonable financial provision - a distinct claim unrelated to validity.
Time Limits for Challenges
Applications for rectification must normally be made within six months of the grant of probate. The court may in limited circumstances allow a late application, for example where a claimant was unaware of the will's provisions or the testator's death.
Challenges based on mistake that involve lack of knowledge and approval or other validity grounds should be initiated promptly to protect evidence and preserve rights before estate assets are distributed.
Risks and Considerations
- Evidential burden: Successfully proving a mistake sufficient to justify rectification or invalidity is demanding; strong evidence is essential.
- Costs: Contentious probate litigation can incur significant legal costs, and unsuccessful claimants may be ordered to pay costs.
- Estate delays: Legal challenges can delay the distribution of estate assets.
Key Takeaways
A will made under mistake does not automatically become invalid in England and Wales. Legal challenges based on mistake rely on recognised grounds such as rectification where the court corrects the document to reflect the testator's true intentions, or lack of knowledge and approval showing that the testator was unaware of the actual contents.
Successful challenges require timely action, clear evidence, and often expert legal assistance. Alternative claims such as professional negligence or claims under the Inheritance (Provision for Family and Dependants) Act 1975 may also be appropriate depending on circumstances.
