The following Pensions practice note Produced in partnership with Oliver Hilton of Radcliffe Chambers provides comprehensive and up to date legal information covering:
Mistakes all too often arise when drafting pension scheme documents, amending them and/or recording the exercise of trust powers. Self-help is usually out of the question as such mistakes cannot generally be rectified retrospectively by using the amendment power in the scheme, where to do so would adversely affect rights accrued up to the date of such amendment or otherwise change the incidence of tax. This is the case because, in general, the Pensions Act 1995, ss 67–67I prohibit detrimental amendments being made to members’ subsisting rights without their consent or an actuary certifying that a member’s rights have been maintained.
For further information on the Pensions Act 1995, ss 67–67I see, Statutory restrictions on amendment—the section 67 regime.
Recourse instead will be needed to the equitable remedy of rectification, which, on the basis of conscionability, good faith and justice, acts retrospectively to relieve parties from the consequences of their mistakes.
The remedy of rectification is concerned with an inadvertent flaw in a written instrument so that its legal effect (properly construed) fails accurately to reflect the actual, real intention and/or agreement of the party or parties to the instrument.
Rectification is thus concerned with the way the transaction has been expressed, rather than a mistake in the transaction itself.
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