In the recent case of Waite v Skilton [2024] EWHC 3153 (Ch) the court has rectified a Codicil drafted on the testator’s deathbed in order to ensure the Codicil properly reflects the testator’s intentions.
A testator had testamentary capacity and gave instructions for a Codicil on her deathbed. The purpose of a Codicil is to change a particular part of an existing Will. The rules for validity of a Codicil and making changes to a Codicil are the same as those for Wills and are governed by the requirements of the Wills Act 1837.
The instructions provided by the testator were urgent and the Will drafter had brought with them a typed template Codicil to fill in various blanks during the meeting with the testator. The Will writer had asked the testator to initial each addition to the template. The Will drafter made an attendance note of the meeting upon their return to the office.
After the testator’s death, her son applied to the Court to rectify the Codicil on the basis that it did not carry out the testator’s intentions because the Codicil was ambiguous in the description of the testator’s properties and chattels when it was read in conjunction with the Will.
The Judge granted the rectification application based on the Will drafter’s attendance note, witness evidence and evidence of the surrounding circumstances.
This case shows the importance of ensuring a testator knows and approves the content of a Will or Codicil and the importance of evidence outside of the Will or Codicil as the Court will look to evidence of the testator's intentions. Each case is decided upon its own merits.
The application was made under Section 20 of the Administration of Justice Act 1982, which allows a rectification application to be made if the Will or Codicil fails to carry out the testator’s intentions because of:
An application to rectify cannot be used to re-write a Will.
The Court will consider:
Our expert team can advise on whether or not an application for rectification of a Will, Codicil or Trust might be successful and what other remedies you could consider. If you believe a deceased’s Will or Codicil should be rectified to give effect to the deceased’s true intentions, please contact our Contentious Trusts and Probate team for advice.
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