A testator writing out his own will can make a clerical error just as much as someone else writing out a will for him. ‘In passing, I note that there is no claim for rectification in the present case. It was suggested in the course of argument that s20 could not apply to a home-made will such as the one before me because ‘clerical error’ on s20(1)(a) suggests a clerk. I do not accept this. A testator writing out or typing his own will can make a clerical error just as much as someone else writing or typing out a will for him’ and ‘if, however liberal may be the approach of the court, the meaning is one which the word or phrase cannot bear, I do not see how . . the court can declare that meaning to be the meaning of the word or phrase’, and ‘varying or contradicting the language used, would amount to re-writing’, which is ‘to be achieved, if at all, under the rectification provisions in section 20’.
Judges:
Nicholls J
Citations:
[1985] 1 All ER 964, [1985] 1 WLR 905
Statutes:
Administration of Justice Act 1982 20
Jurisdiction:
England and Wales
Cited by:
Applied – In re Segelman (dec’d) ChD 1996
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
Cited – Wordingham v Royal Exchange Trust Co Ltd and Another ChD 6-May-1992
A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical . .
Cited – Clarke v Brothwood and others; In re Clarke ChD 16-Nov-2006
The claimant sought rectification of a will. The respondents argued that any mistake was not a clerical one so as to bring it within section 20. The gift of residue had left sixty per cent undisposed of. It was said that the will had referred to . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 04 July 2022; Ref: scu.242248