I am the guest speaker at the Barlow Robbins Solicitors annual Contentious Probate Seminar in Guildford on 9 November. I am speaking about ‘Rectification of Wills’ and set out below my presentation note.
Rectification of wills
Carl Islam, Barrister, TEP, author of the ‘Contentious Probate Handbook’ (published by the Law Society), www.ihtbar.com
I will speak briefly about:
- The court’s power to rectify a will set out in section 20 Administration of Justice Act 1982
- The approach of the court
- Clerical error
- Failure to understand instructions
- Ascertaining the intentions of the testator
The court’s power to rectify a will set out in section 20 Administration of Justice Act 1982
- Section 20 of the Administration of Justice Act 1982 enables the court to order a will to be rectified so as to remedy a failure to carry out the testator’s intentions in consequence of either:
(i) a clerical error; or
(ii) a failure to understand his instructions.
- Section 20(1) requires the court to examine three questions:
(i) what were the testator’s intentions with regard to the disposition in respect of which rectification is sought;
(ii) whether the will is so expressed that it fails to carry out those intentions; and
(iii) whether the will is expressed as it is in consequence of either:
(a) a clerical error; or
(b) a failure on the part of someone to whom the testator has given instructions in connection with his will to understand those instructions.
The approach of the court
In Kell v Jones  Judge Cooke stated,
‘The approach of the court to the question of rectification was agreed by both counsel to be that which was summarised by Mr Justice Chadwick as he then was, in Re Segelman in 1996, as involving the resolution of three questions:
(1) What were the testator’s intentions with regard to the dispositions in respect of which rectification is sought;
(2) Secondly, whether the will is so expressed that it fails to carry out those intentions;
(3) Thirdly, whether the will is expressed as it is in consequence of either:
- clerical error; or
- a failure on the part of someone, to whom the testator has given instructions in connection with his will, to understand those instructions.
It is accepted that the burden of proof is on the person seeking rectification in so far as all these matters require to be established. As to the standard of proof (which is primarily applicable to the evidence required to establish the testator’s intentions, given that that must be established by evidence extrinsic to the will in the nature of matters in relation to applying for rectification) that is accepted to be, again as Mr Justice Chadwick summarised it:
“Although the standard of proof required in a claim for rectification made under section 20(1) of the 1982 Act is that the court should be satisfied on the balance of probabilities, the probability that a will which a testator has executed in circumstances of some formality reflects his intentions is usually of such weight that convincing evidence to the contrary is necessary.”
Thus, the contrary intention of the testator must be established by convincing evidence.’
- In Bell v Georgiou & Anor  which was expressly endorsed and approved by Lord Neuberger in Marley v Rawlings , Mr Justice Blackburne said that, ‘a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or typist, writes something which he did not intend to insert or omits something which he intended to insert… The remedy is only available if it can be established not only that the will fails to carry out the testator’s instructions but also what those instructions were.’
- The court must consider three issues:
(i) what the deceased’s intentions were;
(ii) whether the will fails to carry them out; and
(iii) whether the failure to do so, was the result of a clerical error?
- In Re Segelman  Chadwick J distinguished between three situations, the first two of which engage s.20 and the third of which does not:
(i) the introduction of words into a will through lack of care without advertence to their significance and effect;
(ii) the introduction of words to which the draftsman has applied his mind but in relation to which he has failed to understand his instructions; and
(iii) the introduction of words to which the draftsman has applied his mind with a proper understanding of his instructions but which (perhaps through failure properly to understand the law) did not achieve the objective which he and the testator intended.
- Marley v Rawlings  was the first case on rectification of wills to reach the Supreme Court. Lord Neuberger stated the following:
(i) The best judicial summary of the effect of the cases so far decided on s.20(1)(a) was given by Blackburne J in Bell v Georgiou :
‘The essence of the matter is that a clerical error 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. … The remedy is only available if it can be established not only that the will fails to carry out the testator’s instructions but also what those instructions were.’
(ii) If, as a result of a slip of the pen or mistyping, a solicitor (or a clerk or indeed the testator himself) inserts the wrong word, figure or name into a clause of a will, and it is clear what word, figure or name the testator had intended, that would undoubtedly be a clerical error which could be rectified under s.20(1)(a). It is hard to see why there should be a different outcome where the mistake is, say, the insertion of a wrong clause because the solicitor cut and pasted a different provision from that which he intended. Equally, if the solicitor had cut and pasted a series of clauses from a different standard form from that which he had intended, [there is no apparent reason] why that should not give rise to a right to rectify under s.20(1)(a), provided of course the testator’s intention was clear.
(v) The expression ‘clerical error’ is not one with a precise or well-established, let alone a technical, meaning. The expression also can carry a wider meaning, namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of, a document (save, possibly, to the extent that the activity involves some special expertise). Those are activities which are properly described as ‘clerical’, and a mistake in connection with those activities, such as wrongly filing a document or putting the wrong document in an envelope, can properly be called ‘a clerical error’.
(vi) ‘Clerical error’ is an expression which has to be interpreted in its context, and, in particular on the assumption that s.20 is intended to represent a rational and coherent basis for rectifying wills. The expression ‘clerical error’ in s.20(1)(a) should be given a wide, rather than a narrow, meaning.
(vii) Rectification of other documents (including unilateral documents) is not limited to cases of clerical error, however wide a meaning that expression is given. Accordingly, given that there is no apparent reason for a different rule for wills, it would appear appropriate that the grounds for rectification is as wide for wills as the words of s.20(1) can properly allow.
(viii) There is no apparent limit on the applicability of s.20(1)(b), which supports the notion that s.20(1)(a) should not be treated as being of limited application. However, s.20(1)(b) also has a potential limiting effect on the ambit of s.20(1)(a), in the sense that s.20(1)(a) should not be given a meaning which significantly overlaps with, let alone subsumes, that of s.20(1)(b).
(ix) Sections 17 to 21 of the 1982 Act are all aimed at making the law on wills more flexible and rendering it easier to validate or ‘save’ a will than previously. Section 17, which re-enacts s.9, is concerned with the ‘relaxation’ of formalities; sections 18 and 19 introduce greater flexibility in relation to the effect of the testator’s marriage and death of his issue; s.20 introduces rectification for the first time for wills, and s.21 permits the testator’s subjective intention to be taken into account for the first time. The whole thrust of the provisions is therefore in favour of a broad interpretation of a provision such as s.20(1)(a).
Where a will draftsman knew what he wanted to achieve, and thought wrongly, that he was doing so, i.e. where he made a mistake advertently, then the mistake is not a ‘clerical error’ (Kell v Jones ), and a claim for rectification will fail notwithstanding that the expression ‘clerical error’ should be given a wide, rather than a narrow, meaning following the Supreme Court decision in Marley v Rawlings.
Failure to understand instructions
(i) ‘A failure to understand the testator’s instructions involves a misunderstanding or breakdown in communication between the testator and the person who is drafting or writing out his will. It is to be distinguished from the situation where the draftsman understands his instructions but uses inappropriate language in seeking to give effect to them, as where he introduces words into a will to which he has applied his mind with a proper understanding of his instructions but (perhaps through a failure properly to understand the law) they do not achieve the objective which he and the testator intended.’ (Hodge, Paragraph 8-48).
(ii) This ground is limited to cases where the draftsman fails to understand the instructions given, and thus has a limited scope. It does not cover circumstances where the testator fails to understand the legal effect of the words actually used or where the draftsman uses the wrong technique in drafting the will, even though he has understood the intentions of the testator correctly.
(iii) The conclusion to be reached by the court about whether the draftsman had failed to understand the testator’s instructions is ‘to be arrived at on the balance of probabilities but bearing in mind a strong bias in favour of the conclusion that a duly executed will evidences the intention of the testator.’ (Goodman v Goodman .
Ascertaining the intentions of the testator
(i) It is the testator’s intention at the date of the will that falls to be considered, rather than as at the date of his death.
(ii) It should be borne in mind that the remedy of rectification is available to correct mistakes in the expression of the testator’s intentions, and not for lack or vision, perception or knowledge. ‘One cannot look at circumstances that were not foreseen by the testator at the time he made his will, speculate as to what he might have done in those circumstances, and then supply words to meet those circumstances.’ (Hodge, paragraph 8-43).
(iii) Whilst the standard of proof required is that the court should be satisfied on the balance of probability, ‘the probability that a will which a testator had executed in circumstances of some formality reflects [his] intentions is usually of such weight that convincing evidence to the contrary is necessary.’ (Re Segelman ).
(iv) The evidential burden of proving that the testator’s will failed to carry out his true intentions, is particularly difficult to discharge where he has drafted his own will without the benefit of independent professional legal advice because:
(a) there is unlikely to be any documentary evidence of the testator’s intentions other than the will itself; and
(b) there may not be a witness who was privy to, and can provide evidence of, the testator’s true testamentary intentions.