Rectification

The rectification of a Will is available where there is a mistake in the Will which means that the Will fails to carry out the testator’s (the person making the Will) intentions as a result of:

1. a clerical or administrative error; or
2. a failure to understand the testator’s instructions.

A ‘clerical error’ has been given a relatively wide meaning by the Courts – the most famous case involving rectification concerns a husband and wife who accidentally signed each other’s Will instead of their own. The error must, however, be inadvertent.

A failure to understand the testator’s instruction has a much more narrow scope. An example would be where the testator’s instructions for their Will was to leave a gift to person A, the testator drafts the Will to leave that gift to person B, and the testator executes the Will without realising the mistake.

In both cases, evidence is required and this will ordinarily be in the form of the file of the solicitor or Will writer who drafted the Will, in order to show what the testator’s instructions were.

The Rectification of a Will

The process of applying for the rectification of a Will varies depending on whether the application is contested or uncontested. In both cases, we can help in preparing the application, obtaining evidence and corresponding with other parties interested in the Will (e.g., beneficiaries or executors/administrators).

There is a time limit to make an application for rectification – up to 6 months from the date of the Grant of Representation (usually a Grant of Probate) – after which the permission of the Court is required to make the application.

The standard of proof required to obtain an order for rectification is the balance of probabilities (more likely than not) but the Court have indicated that strong evidence of the intention of the testator is required and speculation as to what the intention might have been is not sufficient. We can help in obtaining this evidence and assessing its strength.