The following Private Client practice note provides comprehensive and up to date legal information covering:

  • Rectification
  • Evidence
  • Defences
  • The effect of rectification

Rectification is a creature of equity and in consequence, entirely discretionary. When considering rectification, the practitioner should bear in mind that it is not the agreement itself that will be rectified but the instrument that records that agreement. Therefore, in the case of a trust instrument, that document will be altered to accurately record the parties' agreement.

This must not be confused with the power to rectify errors that are obvious on the face of the document. In the case of giving effect to the true agreement that resulted in an inaccurate record there will be no obvious error and it is for one of the parties to provide convincing, rather than irrefutable, evidence that it should be changed to reflect the agreement.

Simply put:

'In order to get rectification, it is necessary to show that the parties were in complete agreement on the terms of their contract but by an error wrote them down wrongly… If you can predicate with certainty what their contract was and that it is, by a common mistake, wrongly expressed in the document, then you rectify the document. But nothing less will suffice.'

Denning J (as he then was) went on to say that:

'… in order to ascertain the terms of their contract, you do not look into the inner minds of the parties—into their intentions—any more than you do in the

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