We have a Will that splits the residuary estate into 100 shares and has only accounted for 80 of them, creating a partial intestacy. The Will file has been examined and the attendance notes taken at the time of instruction, covering letter for the draft Will sets out disposal of shares that amount to 100% but two 10% shares have been missed out in drafting. It was not the testators intention to create a partial intestacy, it was a drafting error.
If all the residuary beneficiaries do not agree to a DOV, will a claim to rectify the Will be successful? Or would this be a claim for the construction of the Will? I assume that the next step if for counsels opinion to be sought and shared with the beneficiaries which may encourage them to enter into a DoV to save time and costs.
A further complication is that the beneficiaries who should have received those shares are the Executors. Can they still make the application?
It sounds pretty promising. How many intestacy beneficiaries are there? If they all consent, then it might be possible to rectify under r. 55 of the NCPR rather than by Part 8 claim. And, either way, the firm that drafted the will may find themselves on the hook for the costs.
I agree with Josh. Construction won’t achieve the desired result if two beneficiaries have simply been omitted. With a clear attendance note of instructions, a rectification claim under s.20 AJA1982 seems likely to succeed.
The intended/disappointed beneficiaries are the executors, but I don’t see that that creates a real conflict, as the active defendants to a rectification claim would be the other beneficiaries in the will, and the executors would be neutral.
As Josh says, if probate has not been granted already, and if there is no dispute, then no Part 8 or 57 claim would be needed, and such costs as there are ought to be recoverable from the drafter who made the slip. I hope the drafter is not tempted to defend the indefensible in an effort to avoid embarrassment and/or costs, as in Eade v Hogg last year!
Alexander Learmonth KC
New Square Chambers