Interpretation of wills and failure of gifts - Rectification...

Learning Outcomes

This article examines the interpretation of wills, failure of gifts, and rectification of wills, including:

• Methods by which courts ascertain and give effect to a testator’s intentions through contextual interpretation, including when a will speaks from death and the limited role of extrinsic evidence under s.21 Administration of Justice Act 1982
• Patent versus latent ambiguity and practical rules for resolving uncertainty without rewriting the will
• Principal reasons gifts fail, including lapse, ademption, gifts to witnesses, and simultaneous death
• Statutory substitution for gifts to issue under s.33 Wills Act 1837 and the simultaneous death rule under s.184 Law of Property Act 1925
• The statutory power of rectification under s.20 Administration of Justice Act 1982, including clerical error and failure to understand instructions, evidential requirements, the six‑month time limit from the grant, and the court’s discretion to allow late applications
• The distinction between interpretation and rectification, including when to rely on construction under s.21 versus rectification under s.20 and the limits of both remedies

SQE1 Syllabus

For SQE1, you are required to understand the interpretation of wills, failure of gifts, and rectification of wills, with a focus on the following syllabus points:

• the principles and process of interpreting wills, including the date from which a will speaks and the use of s.21 extrinsic evidence
• identifying and resolving patent and latent ambiguity in testamentary wording
• the main causes of failure of gifts (including lapse, gifts to witnesses, simultaneous death, and ademption) and the statutory exception for gifts to issue (s.33 Wills Act 1837)
• survivorship, gifts to joint tenants, and the simultaneous death rule (s.184 Law of Property Act 1925)
• the legal requirements and limitations for rectification of wills under s.20 Administration of Justice Act 1982, including the six‑month time limit from grant and evidential standards
• how to apply these rules to fact patterns and identify when rectification or interpretation is the appropriate remedy, with awareness of codicils republishing the will

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the difference between a patent and a latent ambiguity in a will, and how may each be resolved?
2. What is ademption, and which types of gifts does it affect?
3. Under what circumstances can a court rectify a will under s.20 Administration of Justice Act 1982?
4. What is the statutory exception to the rule of lapse for gifts to children or remoter issue?

Introduction

When a will is admitted to probate, the court must determine the meaning and effect of its provisions. Sometimes, gifts in a will fail because of events before the testator’s death or because the will does not accurately reflect the testator’s instructions. This article explains the legal rules for interpreting wills, the main reasons why gifts may fail, and the statutory remedy of rectification.

The starting point is that, as regards property, a will generally “speaks” from the testator’s death, so gifts are applied to the estate as it exists at death unless the will shows a contrary intention.

Key Term: interpretation of wills
The process by which the court determines the meaning of a will, aiming to give effect to the testator’s intentions as expressed in the document.

Key Term: speaks from death (s.24 Wills Act 1837)
Subject to a contrary intention, gifts in a will operate as if the will had been executed immediately before death; the estate at death is the reference point for property gifts.

Principles of Will Interpretation

The primary aim in interpreting a will is to give effect to the testator’s intentions as expressed in the will. The court applies the ordinary meaning of the words, reading the instrument as a whole and considering the circumstances known to the testator when the will was executed. Technical terms are given their technical meaning unless the context shows the testator used them differently.

Two related presumptions assist interpretation:

• as regards property, a will speaks from death unless the wording shows otherwise (for example, “now” or “at present” may indicate an intention to speak from the date of execution)
• as regards people, descriptions are usually construed at the date of execution (for example, “the eldest son of X” is the eldest son at the will’s date, subject to any republication by codicil)

Ambiguity and Extrinsic Evidence

Ambiguities in a will are classified as either patent (obvious on the face of the will) or latent (arising only when applying the will to the facts). The general rule is that the court will not admit extrinsic evidence to alter the plain meaning of a will. However, s.21 Administration of Justice Act 1982 permits extrinsic evidence—including evidence of the testator’s intention—if:

• any part of the will is meaningless
• the language used in any part is ambiguous on the face of the will (patent ambiguity)
• evidence (other than evidence of the testator’s intention) shows the language used is ambiguous in light of surrounding circumstances (latent ambiguity)

Extrinsic evidence assists interpretation; it cannot be used to rewrite the will. For example, where the will leaves “all to mother” and the testator had no living mother when it was made but referred to his wife as “mother” in domestic usage, evidence of that usage may be admitted to identify the intended beneficiary.

Key Term: patent ambiguity
An ambiguity apparent from the wording of the will itself.

Key Term: latent ambiguity
An ambiguity that arises only when applying the will to the facts, such as where two people fit a description in the will or no one does.

The Modern Approach

The courts now adopt a purposive approach to interpretation, considering the will in its context and, where necessary, admitting evidence of the testator’s circumstances and knowledge. The Supreme Court in Marley v Rawlings [2014] UKSC 2 confirmed that the principles for interpreting wills are the same as for contracts: the court seeks the meaning the document would convey to a reasonable person with the testator’s knowledge. Post‑Marley, first‑instance decisions have regularly given effect to clear intention where the language or structure is mistaken, using interpretation if possible and rectification if necessary.

Interpretation is distinct from rectification. If the words used can fairly be interpreted to carry out the testator’s intentions, the court should prefer interpretation. If the will, as written, fails to carry out those intentions because of a clerical error or failure to understand instructions, rectification under s.20 may be appropriate.

Worked Example 1.1

A will leaves “all to mother”. The testator’s mother had died years before. Family and friends often heard the testator call his wife “mother.”

Answer:
This is a latent ambiguity. Under s.21 AJA 1982, extrinsic evidence of surrounding circumstances (including habitual usage) may be admitted. If the court is satisfied “mother” was the wife’s familiar description, the gift can be construed as to the wife.

Worked Example 1.2

A will leaves "my car" to a friend. At the time of the will, the testator owns a red Ford. Before death, the testator sells the Ford and buys a blue BMW. Which car passes under the will?

Answer:
Unless the will shows a contrary intention, the gift is of the car owned at death. The friend receives the BMW.

Failure of Gifts: Lapse and Ademption

Gifts in a will may fail for several reasons. The two most common are lapse and ademption. Other common causes include gifts witnessed by the beneficiary or their spouse/civil partner and simultaneous death where survivorship cannot be proved.

Lapse

A gift lapses if the beneficiary dies before the testator. The property falls into residue, or if there is no residuary gift, passes under intestacy. There is a statutory exception for gifts to children or remoter issue.

Key Term: lapse
The failure of a testamentary gift because the beneficiary predeceased the testator.

Key Term: statutory substitution (s.33 Wills Act 1837)
If a testator’s child or remoter descendant is given a gift but dies before the testator leaving issue, the issue take the gift unless the will shows a contrary intention.

As regards people, a will is construed at the date of execution. For class gifts and relational descriptions, consider whether a codicil has republished the will: republication can shift the reference date and avoid lapse where the description now fits someone different.

Gifts to two or more beneficiaries as joint tenants do not lapse unless all predecease the testator; survivorship within the class carries the whole. By contrast, words of severance (for example, “in equal shares”) mean each share can lapse independently, with the lapsed share falling into residue or passing on intestacy absent a substitution clause.

Key Term: simultaneous death rule (s.184 Law of Property Act 1925)
If it is uncertain who died first, the elder is deemed to have died first. This may determine whether a gift takes effect or lapses, and whether survivorship applies in jointly-held property.

Worked Example 1.3

A will leaves £10,000 to the testator’s son, who dies before the testator, leaving two children. What happens to the gift?

Answer:
Under s.33 Wills Act 1837, the son’s children take the £10,000 equally, unless the will indicates otherwise.

Worked Example 1.4

T leaves “£50,000 to my wife, and the residue to my brother.” T and his wife die in a common disaster and the order of death cannot be proved. The wife is older than T.

Answer:
Under s.184 LPA 1925, the elder (the wife) is deemed to have died first, so T is deemed to survive her. The legacy to the wife lapses. The residue passes as directed to the brother.

Worked Example 1.5

A will gives £5,000 to “my friend K,” who acts as a witness to the will. Is the gift valid?

Answer:
The will remains valid, but the gift to K fails under s.15 Wills Act 1837 because a beneficiary (or their spouse/civil partner) who witnesses the will is disentitled to take under it.

Key Term: witness rule (s.15 Wills Act 1837)
A gift to a beneficiary (or their spouse/civil partner) who witnesses the will is void, although the will itself remains valid.

Ademption

Ademption occurs when a specific gift is no longer part of the testator’s estate at death. This usually happens because the testator has disposed of the item during their lifetime, or its substance has changed so it no longer meets the description in the will.

Key Term: ademption
The failure of a specific gift because the subject matter is not part of the testator’s estate at death.

A specific gift adeems if the subject matter is sold or otherwise ceases to exist, or if corporate changes transform the asset’s substance (for example, shares exchanged in a takeover). Mere changes in name or form that do not alter substance (for example, share reorganisations preserving the same economic interest) do not adeem. Demonstrative legacies (general gifts payable from a specified fund) do not adeem; if the fund is insufficient or closed, any shortfall is met from other assets.

Where the description is capable of fluctuation (for example, “all my jewellery”), courts tend to treat the gift as referring to items meeting that description at death. By contrast, a gift of “my [identified item]” (for example, “my pearl necklace”) typically refers to the particular asset owned at the date of the will unless the will shows a contrary intention, subject to codicil republication.

Worked Example 1.6

A will leaves "my gold watch" to a friend. The testator sells the watch before death. What does the friend receive?

Answer:
The gift adeems. The friend receives nothing.

Worked Example 1.7

In 2018, a will leaves “my gold watch” to P. The watch is lost in 2020 and replaced. In 2023, the testator executes a codicil adding an extra pecuniary legacy.

Answer:
A codicil republishes the will as of the codicil’s date. The gift of “my gold watch” is read as if made in 2023. P takes the replacement watch, absent contrary intention.

Worked Example 1.8

A will leaves “£2,000 to be paid from my ABC Bank savings account.” The account is closed before death, but there is sufficient cash in the estate.

Answer:
This is a demonstrative legacy. It is payable from the named fund if possible; otherwise, any shortfall is met from general estate funds. The legacy does not adeem.

Exam Warning

Ademption applies only to specific gifts. General legacies (such as a sum of money) do not adeem, even if the testator’s cash is insufficient at death.

Rectification of Wills

Sometimes, a will as drafted fails to carry out the testator’s intentions because of a clerical error or a failure to understand instructions. In such cases, the court may rectify the will under s.20 Administration of Justice Act 1982.

Key Term: rectification of wills
The statutory power of the court to order that a will be corrected so it reflects the testator’s true intentions, where the will fails to do so due to a clerical error or a failure to understand instructions.

Rectification is exceptional. The applicant must show, on the balance of probabilities, that the will as expressed fails to carry out the testator’s intentions and that the failure was caused by one of the two gateway errors. The court will consider drafts, attendance notes, letters/emails, and other contemporaneous material evidencing instructions. Rectification is not a vehicle to rewrite the will where the testator misunderstood the legal effect of deliberately chosen wording or later changed their mind.

Requirements for Rectification

The court may rectify a will if satisfied that:

• the will fails to carry out the testator’s intentions because of a clerical error or a failure to understand instructions; and
• there is clear evidence of the testator’s actual instructions.

“Clerical error” is interpreted broadly to include copying and typing mistakes, omitted or misinserted words, and similar drafting slips. “Failure to understand instructions” covers cases where the drafter misunderstood what the testator asked them to achieve. It does not include a professional misunderstanding of the law when deliberately choosing language.

The application must normally be made within six months of the grant of probate (s.20(2)), but the court may allow late applications depending on the circumstances (including the merits, reasons for delay, prejudice to beneficiaries, and whether the estate has been distributed).

Illustrative authorities include:

• Wordingham v Royal Exchange Trust Co (1991): omission of a power by mistake was a clerical error; rectification granted
• Joshi v Mahida [2013] WTLR 859: a misphrased share (“one half of my share” vs “my one half share”) was a clerical error; rectification granted
• Sprackling v Sprackling [2008] EWHC 2696 (Ch): drafter misunderstood instructions as to the extent of land intended; rectification granted
• Bush v Jouliac (2006): failure to insert wording excluding s.33 where instructions clearly required exclusion could be treated as a drafting slip where the omission was inadvertent; deliberate legal choices cannot be rectified merely because their legal effect was misunderstood

Worked Example 1.9

A testator instructs their solicitor to leave £5,000 to "my niece, Sarah Brown." The will, due to a clerical error, leaves £5,000 to "my nephew, Simon Brown." Can the will be rectified?

Answer:
If there is clear evidence of the testator’s instructions, the court may rectify the will to substitute "Sarah Brown" for "Simon Brown."

Worked Example 1.10

The testator instructs: “If my son predeceases, I do not want his children to take his share.” The will leaves “£20,000 to my son” but contains no wording excluding s.33 Wills Act 1837.

Answer:
If contemporaneous records show clear instruction to exclude substitution, the omission may be rectified as a clerical error or failure to understand instructions. Without such evidence, rectification is unlikely; the statutory substitution would apply.

Worked Example 1.11

The testator dictates a residuary gift to “Animal Rescue Trust, registered charity number X.” The drafter mistakenly types the wrong charity number and address, pointing to a different organisation.

Answer:
With evidence of the intended charity (file notes, draft, testator’s confirmation), this is a clerical error. Rectification can correct the misdescription so the true intended charity takes.

Worked Example 1.12

The testator owns ordinary shares in ABC plc and instructs “give my ABC plc shares to D.” The drafter substitutes “any shares in my portfolio to D.” The broader wording causes tax and distribution issues contrary to instructions.

Answer:
If records show the narrower instruction, the widened wording reflects a failure to understand instructions. Rectification may restore the intended specific gift of ABC shares.

Limitations of Rectification

Rectification is not available to:

• cure invalidity for failure to comply with execution formalities (for example, lack of proper witnessing)
• give effect to intentions not communicated to the drafter
• amend a will because the testator later changed their mind after execution
• correct a mistake of legal effect where the wording was deliberately chosen (unless the evidence shows the wording was accidentally included or omitted contrary to the testator’s instructions)

Where interpretation can achieve the result (for example, reading ambiguous wording in context per Marley v Rawlings), the court will prefer interpretation. Rectification is reserved for mis-expression of otherwise clear instructions.

The court has a discretion to permit applications outside the six‑month period. Factors include the strength of the case, reasons for delay, whether the estate has been distributed, and prejudice to others. If rectification is refused or inappropriate, consider other remedies where relevant (for example, construction under s.21 or professional negligence against the drafter).

Revision Tip

Rectification is only available for errors in the will’s wording, not for mistakes in the testator’s understanding of the law or the effect of the will.

Key Point Checklist

This article has covered the following key knowledge points:

• The court’s aim in interpreting a will is to give effect to the testator’s intentions as expressed in the will, applying ordinary meanings and context.
• The will generally speaks from death as to property (s.24 Wills Act 1837) and from execution as to people, subject to republication by codicil.
• Ambiguities may be resolved using extrinsic evidence under s.21 AJA 1982 if the will is meaningless or ambiguous (patent or latent).
• Gifts may fail by lapse (if the beneficiary dies before the testator), by operation of s.15 (gifts witnessed by beneficiary or spouse/civil partner), or by ademption (if a specific gift is not in the estate at death).
• Section 33 Wills Act 1837 provides a statutory exception to lapse for gifts to children or remoter issue; survivorship and s.184 LPA rules may determine outcomes on simultaneous death.
• Demonstrative legacies are payable from the specified fund if possible; any shortfall is met from other estate assets.
• Rectification under s.20 Administration of Justice Act 1982 allows the court to correct a will that fails to reflect the testator’s instructions due to a clerical error or a failure to understand instructions, normally within six months of grant.
• Interpretation (s.21) and rectification (s.20) are distinct remedies; choose the correct route based on whether the words can be construed to carry out the intention or whether the will mis-expresses instructions.

Key Terms and Concepts

• interpretation of wills
• speaks from death (s.24 Wills Act 1837)
• patent ambiguity
• latent ambiguity
• lapse
• statutory substitution (s.33 Wills Act 1837)
• simultaneous death rule (s.184 Law of Property Act 1925)
• witness rule (s.15 Wills Act 1837)
• ademption
• rectification of wills