Validity of Wills—rectification of Wills
Validity of Wills—rectification of Wills

The following Wills & Probate guidance note provides comprehensive and up to date legal information covering:

  • Validity of Wills—rectification of Wills
  • The court's power to rectify
  • Clerical error
  • Failure to understand
  • Procedure
  • Rectification v negligence?
  • Alternative remedies

The court's power to rectify

A claim for rectification is not actually a probate claim as such, but it is relevant under that general heading by way of an amplification of the available relief for a claim for want of knowledge and approval where a mistake in the drafting of a Will has been made.

Rectification is available for deaths after 31 December 1982 under section 20 of the Administration of Justice Act 1982 (AJA 1982) which provides that:

'If a court is satisfied that a Will is so expressed that it fails to carry out the testator's intentions, in consequence

(a) of a clerical error; or

(b) of a failure to understand his instructions,

it may order that the Will shall be rectified so as to carry out his intentions.'

Despite the positive nature of the statement this power of rectification is discretionary and the conditions under which this power operates are set out in AJA 1982, ss 20(2)–20(4):

(2) An application for an order under this section shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out.

(3) The provisions of this section shall not render the personal representatives of a deceased person liable for having distributed