On occasion a Will, Trust or Deed will fail to reflect the actual intentions of the testator or settlor. In such cases a claim for rectification can be considered.
The Court has an obligation to see that, so far as possible, “the intentions of the testator are honoured” (Barrett v Hammond & Others [2020]). The remedy itself is discretionary however so the Court will not always grant the application.
A claim for rectification of a Will, Trust or Deed is made under section 20 of the Administration of Justice Act 1982. The requirements of Section 20 provide that rectification can only be ordered where one of two conditions is met. The Court must be satisfied that a Will, Trust or Deed fails to carry out the testator’s intentions due to either (1) a clerical error or (2) failure to understand the testator’s instructions.
An application must be made under s20 of the Administration of Justice Act 1982 not later than six months after the date of the Grant of Probate. If the application is delayed beyond six months, then the application may still proceed but it will be necessary to seek permission from the Court to make the application.
In considering whether a document should be rectified, the Court will consider:
There is no clear definition of what constitutes a “clerical error” for the purposes of an application under Section 20.
In 2002 “clerical error” the case of Bell v Georgiou descried it as an error that "...occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert."
One of the most famous case of clerical error is that of Marley v Rawlings [2014] where a married couple made mirror wills. Due to an error on the part of the solicitor each of them signed the other’s Will, When the husband died it came to light that his Will had been signed by his wife. The Court allowed the application for rectification in that case.
In another rectification case an error on the part of a solicitor in calculating shares of the residuary estate led to less than 100% of the residue being left in the Will. On considering the handwritten notes of the meeting between the testator and the solicitor it was clear this was the result of a clerical error and the Court allowed the application for rectification.
In contrast, the Court refused an application for rectification in Kelly .v. Jones and Others (2012) when it found that the Will writer had chosen the wording on purpose, believing that the words achieved the testatrix’s intention. This was ruled not to be a clerical error.
These cases demonstrate that any application for rectification will turn on its own individual facts and it cannot be assumed that the Court will allow an application for rectification.
An application for rectification under Section 20 Administration of Justice Act 1982 on the ground of a failure to understand will require clear evidence to support the application. This will usually be in the form of a solicitor’s fie and witness evidence.
If the application is made on this ground then the applicant must demonstrate that document is incorrect because of a failure to understand the testator’s intentions or a misunderstanding of them.
This is a harder basis for an application for rectification and will only succeed if the applicant can show
It should be noted that a misunderstanding is different to the drafting simply being incorrect.
The decision to grant or refuse an application for rectification lies squarely with the Court. It is the Judge who must be persuaded that the testator intended something different by their Will and that the correct course of action is to rectify the error.
In the recent case of Bonham and others v Stringer and others [2025] EWHC 28 (Ch) HHJ Matthews accepted an argument that a Will which divided the residuary Estate into three parts but only dealt with three of those parts did not intend to create an intestacy over the remaining quarter share. In that case the Judge ordered that the word “four” in the Will should be read as “three”. Not all cases are so easily remedied and if a Court does decide not to grant an application for rectification the remedy may lie only in a claim against the solicitors who drafted the Will.
If there is an error in the drafting of a Will, Trust or Deed and an application for rectification is needed then it may also be appropriate to consider a claim for professional negligence against the solicitor or Will writer who prepared the original document.
This may be a claim to recover the costs incurred in making the application for rectification or, if an application is not possible or is refused, for losses that arise as a result of errors in drafting.
Disadvantaged beneficiaries may be able to bring a claim against the solicitor or will writing professional if they can show the professional had been negligent in not ensuring that the Will, Trust or Deed making process was carried out competently, so as to ensure that the testator’s intentions were understood and carried out
If you have concerns about a Will, Trust or Deed and would like to consider an application for rectification please contact our expert team by clicking here, to that we can look at the document and advise you on the options available.
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