The Basis for a Claim

If you are concerned that a will, codicil or any other testamentary document contains a mistake such as:

it can be rectified by the court to reflect the testator's instructions properly. (s.20 Administration of Justice Act 1982). The court must be satisfied by reference to convincing evidence that the will does not reflect the testator's intentions before it will agree to order its rectification.

Burden of Proof

The standard of proof in a will rectification case has been described by Chadwick J in Re Segelman [1996] CH 171 as follows:

"Although the standard of proof required in a claim for rectification made under s20(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".

Time Limit

Any claim for rectification of a will must be brought within 6 months of the date of the grant of probate. Any attempt to bring a claim after the expiry of this time limit will need the permission of the court and the court will need to be satisfied that a late claim is just and proper in the circumstances.

Unopposed Applications

An application to rectify a will is often supported by all concerned. In these situations, where the error is clear for all to see, and where all affected are of full age and capacity, an application can be made to a District Judge in the Principal Registry of the Family Division or district probate registrar who can then rectify the will without the need for a hearing.

Contested Applications

There are occasions when agreement amongst the beneficiaries is not possible and the matter needs to be dealt with at a contested hearing. The personal representatives should be joined as parties to the proceedings along with all of the beneficiaries. This can be a time consuming and expensive process and it is advisable to consider all other options before taking this step. Proceedings should be initiated in the Chancery Division.

Form of Application

Application must be made by affidavit, supported by such evidence as can be found in relation to the testator's intentions and instructions. The application should be served on anyone whose interest under the Will might be affected by the rectification.

This note is intended to provide a general overview only and it is not intended to be comprehensive nor to provide specific legal advice. It should not be acted upon or relied upon. For further information and advice tailored to your specific circumstances, please contact any member of the Trusts & Fiduciary Disputes Team.