IHTM12056 - Construction of wills: rectification of wills

Prior to the Administration of Justice Act 1982, the general equitable doctrine of rectification was not available as a remedy in the law of wills. The court therefore had no power to insert words that the testator (IHTM12001) had intended to include - it could only omit words of which the testator did not know and approve, thus leaving a blank space in the probate copy of the will.

S20 Administration of Justice Act 1982 provides for a limited power to rectify wills of testators dying on or after 1 January 1983. If the court is satisfied that the will failed to carry out the testator’s intention it has power to rectify the will in order to give effect to those intentions in two situations

• where there is a clerical error - that is, an inadvertent error made in the process of recording the intended words of the testator in drafting or in the transcription of the will, such as the insertion of a legacy intended to be £500 at £50
• where the person who prepared the will failed to understand the testator’s instructions. An example of this would be where a solicitor fails to understand that the testator wished to leave certain property to X and so draws the will to leave the property to Y.

In both types of case it may be difficult to prove the testator’s original intention. There must be clear evidence that the testator’s intention is not reflected in the will by reason of the error or the failure of understanding the testator’s instructions. Evidence may be oral or written. Application for the remedy must be sought within six months of the date of the grant (IHTM05001).