What happens if a Will doesn't reflect the testator's wishes?

A recent case heard by the England and Wales High Court has highlighted the issues that can be encountered if a Will is drafted which does not reflect the testator’s instructions. The case of Mundil-Williams v Williams concerned a Will which seemingly did not reflect the wishes of the now deceased testator.

The facts of the case

Mr John Williams died in 2017, survived by four sons and leaving a family farm worth around £700,000 – a significant proportion of his estate, which totalled around £983,000.

The eldest son, Richard, had been a partner in the farming business since 1979 and had taken over the running of it by the time his father made his Will in 2014.

When putting his Will in place, Mr Williams provided his instructions in person at the offices of the family solicitors. They were given verbally to a secretary who made notes of the meeting and completed a standard form recording the details. When the notes were then passed on to a paralegal to draft the Will, however, the instructions as given in the meeting (namely with regards to the succession of the farm) were not reflected in the draft. Although the draft was sent to Mr Williams to check, he did not raise any issues and proceeded to subsequently sign the Will.

Following his father’s death, Richard then challenged the Will on the basis that it did not reflect his father’s wishes as previously expressed to the family and as provided in his instructions to the solicitors. The court was asked to void the Will on the grounds of lack of knowledge and intent.

The court agreed that the evidence showed Mr Williams had not appreciated the implications of the terms of the Will and that it did not reflect his wishes. The court also concluded that there was nothing to suggest that Mr Williams’ wishes had changed between the initial meeting and the Will being finalised. As a result, the court used its power to exclude some words from the Will on the basis that the amended version would be more consistent with Mr Williams’ intentions than if the Will was set aside and an earlier Will allowed to stand in its place.

What would happen in Scotland?

Although this case occurred south of the border, the position is not dissimilar in Scotland.

Under the Succession (Scotland) Act 2016, a Will can be rectified if the testator died domiciled in Scotland, the Will was drafted by a third party (e.g. a Solicitor) and there is sufficient evidence to satisfy the court that the Will does not reflect the testator’s express instructions.

The process involves an interested party (for example an executor or beneficiary) applying to the Court of Session or the Sheriff Court of the Sheriffdom in which the testator was resident at their death. In order for the application to be successful, the court must be satisfied that the Will fails to express exactly what was instructed and therefore there must be instructions which can be compared against the executed Will. The court may also take account of evidence extrinsic to the Will.

There would of course be no guarantee that any such application would be successful which, together with the costs which would be incurred in raising such an action, show that it is clearly preferable for a Will to be drafted as wished in the first place! The provision is however helpful in the rare cases where things may for example be misinterpreted. It should also be noted that this remedy is not available where the testator has drafted their Will themselves – lending further weight to the importance of seeking assistance in preparing your Will.

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