Rectification of Wills

 In Wills

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Section 20 of the Administration of Justice Act (‘AJA’) 1982 provides a mechanism for the court to rectify a Will where due to a clerical error or a failure to understand the testator’s instructions the Will fails to carry out the testator’s intentions.

Two recent cases illustrate circumstances in which the court has been willing to exercise this power, and circumstances in which it has not:

Marley v Rawlings [2011] EWHC 161 (Ch)

A husband and wife had instructed solicitors to prepare mirror Wills. Unfortunately, they signed each other’s Wills and a claim was made for rectification.

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In her judgment Mrs Justice Proudman extracts the following propositions from the case law:

A) The court needs to answer three questions when dealing with claims for rectification:

  1. What were the testator’s intentions with regard to the dispositions in respect of which rectification is sought?
  2. Is the Will so expressed that it fails to carry out those intentions?
  3. Is the Will expressed as it is in consequence of (a) a clerical error or (b) a failure on the part of someone to whom the testator has given instructions for the Will to understand those instructions?

B) A ‘clerical error’ is an error in the process of recording the intended words of the testator in the drafting or transcription of the Will. This extends to cases where the person drafting the Will has not appreciated the significance or effect of the introduction (or deletion) of a particular provision. However, this is not the same as a situation where the testator fails to appreciate the significance of words deliberately used, where rectification is not available.

C) Rectification is only available where the Will conforms with the Wills Act 1837, i.e. it was properly executed and “it appears that the testator intended by his signature to give effect to the Will” (s.9(b) Wills Act 1837).

Proudman J held that s.9(b) Wills Act 1837 provided a complete answer to the claim: the testator had never intended by his signature to give effect to the Will he signed.

If she were wrong on this point, the judge held at [29] that a clerical error

“cannot in my view extend to something beyond the wording of the Will which is sought to be rectified. “

She concluded that in this case there was no error in drafting. Both Wills were correctly expressed; the error was simply that the wrong Will was tendered for signature. That, she concluded, was not an error that s.20 AJA 1982 could reasonably have been intended to cover. If it had, the court would have jurisdiction to rewrite a Will where a solicitor “had pulled a Will prepared for a totally unconnected testator out of his briefcase and that one had been signed by mistake”. And that, in Mrs Justice Proudman’s words, “flies in the face of common sense”.

Austin v Woodward & others (2011) (ex tempore judgment 22.07.2011, ChD, Daniel Alexander QC)

The claimant met with greater success in the case of Austin v Woodward. The Will was made in 2003 to update a 1993 Will. Under the 1993 Will a property was to go to the testatrix’s husband or, failing that, to the claimant absolutely. The 2003 Will was expressed so that the property was to fall into residue if the testatrix’s husband predeceased her. The claimant had a life interest only in the residue.

It was admitted by the executors that the 2003 Will contained a mistake and it had been the testatrix’s intention that the property should go to the claimant absolutely if the husband predeceased her.

Daniel Alexander QC held that it was plain that the impugned provision of the 2003 Will had been based on a new precedent which had been used without any thought given to the impact that that might have on the relevant disposition. In other words, this mistake fell squarely within the definition of a clerical error.

In line with the law as set out in Marley v Rawlings, this seems to be a clear case where “the person drafting the Will has not appreciated the significance or effect of the introduction (or deletion) of a particular provision”.

The Limits of Rectification

These two decisions illustrate that s.20 AJA 1982 gives the court a wide discretion to correct errors, but only if the document that is to be corrected was signed by the testator with the intention of giving it effect as his Will, and if the error to be corrected was one in the wording of the Will.

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