What is rectification of a will?
Rectification is an equitable remedy primarily available to remedy mistakes in written instruments recording the terms of contracts.
The Administration of Justice Act 1982 provides a limited power to rectify wills to rectify two types of mistakes:
1. Mistakes caused by clerical error (S.20 The Administration of Justice Act 1982)
2. Mistakes arising from the draftsman failure to understand the testators instruction. (S.20 (1) The Administration of Justice Act 1982)
If a Court can be satisfied that the will is expressed in a way that fails to carry out the testators intentions it can order the will to be rectified so as to carry out the intentions.
Mistakes caused by clerical error – this means inadvertent error made in the process of recording the words of the testator in drafting or transcription of the will. Examples of this maybe failing to include a mirror clause from an earlier will that the deceased wanted or making reference to an incorrect paragraph number in a codicil.
Mistakes arising from the draftsman’s failure to understand the testators instruction can in limited circumstances be rectified.
Rectification is limited in use in these circumstances, it can only be used where there is a separate draftsman and this person fails to understand the instruction. For instance the will is in error drafted in a way that leaves all the estate to X rather than Y and the testator signs the will without noticing the error.
Rectification cannot be used where the testator drafts their own will or where the testator fails to understand the legal effect of the words they have used and this creates and unintended result.