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24th February, 2021

What is “Rectification”?

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Occasionally, a person will pass away leaving a Will which does not seem to reflect their wishes.

This gives rise to the question of whether such a Will can be amended after death in order to give effect to the deceased’s true intentions. The court has the power to amend a Will which appears not to correctly set out the deceased’s intentions, this process is called rectification.

The recent case of Barrett v Hammond (2020 EWHC 3585 Ch)  concerned an application to rectify a Will. The deceased, Dr Robert Munroe Black, had executed a Will on 29th September 1998 and had added to it by executing Codicils in August 2005 and March 2016.

The Executrix of the estate, Elizabeth Barrett, made an application to the court as she was uncertain about the effect of the Will and 2005 Codicil. The Will had divided Dr Black’s estate into 52 equal shares, leaving six shares each to six individuals and two shares each to eight charities. The 2005 Codicil amended the Will to remove the gifts to two of the individuals and to add two more gifts to different charities of two shares each. This left eight shares out of the original 52 which were no longer given away under the terms of the Codicil.

The court handed down their initial ruling in July 2019 that the Will and two Codicils together had the effect of leaving the outstanding eight shares to pass under the rules of intestacy. As part of the ruling, the court ordered the Executrix to apply for rectification of the Will.

The law surrounding rectification of a Will is set out in section 20 of the Administration of Justice Act 1982. The court can only order rectification for two reasons, firstly, when the Will fails to carry out the intentions of the deceased due to a clerical error or, secondly, where there has been a failure to understand the Will instructions.

In this case, the court considered evidence showing Dr Black’s Will making history which showed a tendency to divide his estate into parts between a number of relatives. The court found that the evidence showed the deceased’s intention to give all of his estate away in his Will rather than leaving any shares to pass under the rules of intestacy. The court held that, on balance, it was likely that the deceased intended to dispose of every share in his estate and the failure of the solicitor who prepared the 2005 Codicil to ensure that it disposed of all of the shares was a clerical error and therefore rectification could be ordered of the Codicil so that the estate was divided into the correct number of parts.

James Wallace

Contested Wills, Trusts & Estates

Email: [email protected]
Tel: 01244 405 588

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