In the recent case of Mundil-Williams v Williams, a challenge was made to the validity of the deceased's final will on the basis that the deceased did not know and approve its contents. Rather than find the will to be invalid, the Court rectified the Will by excluding words from it so that it more accurately reflected the deceased's intentions.
The deceased was a Welsh farmer who died in September 2017. The family farm, valued at around £700,000, was the estate’s primary asset. Under the terms of his previous 1990 will, the deceased left the residue of his estate to his four sons equally. He executed a new will in 2014, at which time his eldest son was in charge of the day-to-day duties on the farm. He gave verbal instructions for the will in person to a secretary at the family's solicitors. The secretary took a handwritten note which she then typed up and gave to the paralegal responsible for drafting the new will. However, the provisions drafted did not accurately reflect the instructions. The deceased wished for his eldest son to receive an agricultural tenancy and 62.5% of the residue, yet the will provided that he would receive the farm outright, leaving the three other brothers with only 12.5% of the residuary estate, which excluded the farm. The deceased approved the draft of the will and then executed it.
One of the sons, Timothy Mundil-Williams, challenged the will following his father's death on the basis that it did not represent his father's wishes and intentions as expressed to the family and the solicitors. There had been no doubt cast upon the deceased's capacity.
Keyser HHJ held that the deceased did not have knowledge and approval of the contents of the will as he did not understand its provisions and did not appreciate that the farm was not part of the residuary estate, detailing fourteen reasons as to how he had reached this decision. However, unusually, rather than finding the will to be invalid, Keyser HHJ followed the 2014 case of Marley v Rawlings (Marley v Rawlings  UKSC 2,  AC 129) by omitting words from the will as this would make it more consistent with the deceased's intentions, rather than admit the previous 1990 will to probate.
Two key take away point from the judgment are:
- When taking instructions for a will, the testator must fully understand the meaning of the wording of the provisions.
- If the will does not reflect the deceased's wishes and intentions, the Court has the power, in certain circumstances, to amend the wording of the will rather than admitting a previous will. A claim for rectification may have been the more appropriate claim from the outset.