Rectification of a Will UK (2026): Correcting Drafting Errors Under the Administration of Justice Act 1982

The court's power to rectify a will is statutory — it exists under the Administration of Justice Act 1982 s.20, which provides that: 'If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence of (a) a clerical error; or (b) a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions'. The two grounds are distinct: (1) GROUND (a) — CLERICAL ERROR: this is the broader and more commonly invoked ground. Before Marley v Rawlings, there was debate about what counted as a 'clerical error'. Many courts took a narrow view — restricting it to simple transcription mistakes (typing the wrong name, wrong amount, wrong reference). Marley v Rawlings [2014] UKSC 51 expanded this significantly (see FAQ 2). Post-Marley, clerical error includes: (a) a typist's transcription error; (b) accidentally inserting a clause from another client's file; (c) using the wrong precedent or template clause; (d) inadvertent use of the wrong document entirely (as in Marley itself); (e) wrong description of a property or asset; (f) wrong cross-reference to a statutory provision; (2) GROUND (b) — FAILURE TO UNDERSTAND INSTRUCTIONS: this ground is narrower. It applies where the draftsman received the testator's instructions correctly but then misunderstood what the testator was asking for and drafted the will differently. Evidence of the testator's actual instructions is required — typically attendance notes from the solicitor, contemporaneous correspondence, or witness evidence of what the testator communicated. It does NOT apply where the draftsman understood the instructions but the testator's instructions were themselves confused or ambiguous (the right remedy there is construction, not rectification); (3) WHAT RECTIFICATION IS NOT: (a) it is not available to fix a legal error by the draftsman in understanding the law (that may found a negligence claim but not s.20 rectification); (b) it is not a route to change the will to what the testator would have wanted had they known the full facts; (c) it does not allow the court to reform a validly expressed intention the testator held but may now regret (that would require a new will).

Marley v Rawlings [2014] UKSC 51 is the landmark Supreme Court decision that transformed the law of will rectification and settled the meaning of 'clerical error' under the Administration of Justice Act 1982 s.20: (1) THE FACTS: Mr and Mrs Rawlings made mirror wills, each leaving their estate to the other and — if the other had predeceased — to their adopted son Mr Marley. The wills were prepared by a solicitor. When the couple came to sign them, they accidentally signed each other's will (Mr Rawlings signed Mrs Rawlings' will and vice versa). The error was not spotted. Mrs Rawlings died first. When Mr Rawlings died, his will (which he had actually signed) was in fact Mrs Rawlings' will — leaving everything to Mrs Rawlings (who was already dead). The biological sons of the Rawlings challenged the will. Had the will stood as executed, Mr Marley would have received nothing; (2) THE FIRST INSTANCE AND COURT OF APPEAL: the trial court and Court of Appeal refused rectification, holding that the accidental signing of the wrong document was not a 'clerical error' within s.20(1)(a). They took the view that clerical error meant a mistake in the CONTENT of a document, not the wrong document being used; (3) THE SUPREME COURT: the Supreme Court unanimously allowed the appeal. Lord Neuberger (with whom all four other justices agreed) held: (a) The phrase 'clerical error' in s.20(1)(a) should be given a wide, natural meaning — it encompasses 'an error made in the process of recording the intended words of the testator in the drafting or preparation of the will'; (b) The accidental use of the wrong document during the execution process was plainly a clerical error — it was a mistake made in the recording process; (c) The will should be rectified to give effect to what Mr Rawlings actually intended; (4) WHY MARLEY MATTERS: (a) It confirmed that rectification is available where the WRONG DOCUMENT is used — not just where the content of the right document contains errors; (b) It adopted a purposive, broad interpretation of 'clerical error'; (c) It emphasised that the purpose of s.20 is to give effect to the testator's ACTUAL intentions where those can be clearly established; (d) It is authority that s.20 is to be construed generously in favour of the testator's intentions; (5) THE LIMITS OF MARLEY: even post-Marley, rectification is not a general equitable power to rewrite wills — it requires a clear, established error in the recording/preparation process and clear evidence of the testator's actual intentions. It cannot be used where the will says exactly what the testator intended but the testator's intention turns out to be legally ineffective.

The time limit for rectification applications is strictly limited by statute: (1) THE STATUTORY TIME LIMIT: Administration of Justice Act 1982 s.20(2) — an application for rectification must be made within 6 months of the date on which representation is first taken out (i.e. 6 months from the grant of probate or letters of administration). This is a strict procedural requirement; (2) PRACTICAL CONSEQUENCES: the 6-month clock starts from the GRANT OF REPRESENTATION, not from the date of death. If probate is obtained quickly (in 3-4 months of death), the remaining time for a rectification application may be short. In complex or contested estates, probate can take 12+ months — in which case the rectification window has already run by the time the estate is ready to administer; (3) COURT DISCRETION TO EXTEND: s.20(2) provides that the court may extend the time limit if it 'thinks fit'. This is a discretionary power that is exercised sparingly. The court will consider: (a) the reason for the delay; (b) the strength of the rectification claim; (c) prejudice to third parties who may have altered their position in reliance on the will as it stands; (d) whether the estate has already been administered (harder to unwind); (e) the overall merits and justice of the case; (4) REGISTERED LAND AND REGISTERED CHARGES: where the estate includes registered land and it has been transferred under the unamended will before rectification is sought, the position is complicated by the land registration regime — overriding interests, charges, and third-party rights. The Land Registration Act 2002 and the AJA 1982 interact in ways that require specialist advice; (5) PRESERVING THE POSITION PENDING APPLICATION: an application for an extension of time (or the main rectification application) should be served on all interested parties — including any beneficiaries who would lose on rectification. A caveat at the Probate Registry may be appropriate to prevent distribution pending the rectification claim; (6) NOTICE TO HMRC: where rectification changes the IHT position (see FAQ 5), HMRC must be notified. Any IHT underpaid (or overpaid) must be recalculated under the rectified will.

Rectification and construction are distinct remedies for dealing with apparent errors or ambiguities in wills — and it matters which remedy is being sought: (1) CONSTRUCTION: the court interprets the words of the will as written, giving them their natural meaning in context. Extrinsic evidence of the testator's intentions is admissible in limited circumstances under AJA 1982 s.21: (a) any contradiction on the face of the will itself; (b) evidence of the surrounding circumstances when the will was made; (c) evidence of the testator's intentions to resolve an equivocation — where the words equally apply to two different people or objects. Construction does NOT change the words of the will — it gives meaning to words that are already there. The corrective effect comes from interpretation, not amendment; (2) RECTIFICATION: the court changes the WORDS of the will itself to correct an error in expression. The words used do not reflect the testator's intentions. The remedy is to amend the document. Evidence of the testator's instructions and the error made is central; (3) THE DISTINCTION IN PRACTICE: (a) If the will says 'I give £10,000 to my son Michael' and the testator had two sons named Michael — a matter of equivocation resolved by construction; (b) If the will says 'I give £10,000 to my son Michael' but the draftsman accidentally used the wrong name and the testator clearly meant to leave £10,000 to his grandson Mitchell — that is a clerical error correctable by rectification; (c) If the will contains a contradictory residue clause because two clauses were accidentally combined from different precedents — possibly both construction and rectification are available, but rectification is preferable to get a clear outcome; (4) THE APPROACH: courts will attempt construction FIRST. Only if construction cannot give the will a sensible meaning that reflects the testator's intentions will they proceed to consider rectification. This sequencing was affirmed in Marley v Rawlings, where Lord Neuberger held that the court should consider whether the instrument can be construed to have its natural meaning before ordering rectification; (5) ADMISSIBILITY OF EVIDENCE: for construction, the court looks at the will itself and surrounding circumstances. For rectification, the court may look at the draftsman's instructions, attendance notes, file notes, correspondence, and oral evidence of what the testator said — broader evidence than for construction.

A successful rectification order has significant procedural and tax consequences: (1) THE EFFECT ON DISTRIBUTION: a rectification order changes the will as a matter of law. The rectified will is treated as though it always said what the rectified version says — going back to the date of execution. Any distribution made under the unamended will before rectification was granted may need to be unwound or compensated. This is one reason why seeking rectification promptly (and before distribution) is important; (2) PROBATE AND THE GRANT OF REPRESENTATION: if probate has already been granted on the unamended will, the rectification order must be drawn to the attention of the Probate Registry. The grant may need to be amended or recalled and reissued. The court's rectification order is the authoritative document; (3) IHT IMPLICATIONS — IHTA 1984 s.146: where a court order under the Administration of Justice Act 1982 (including a rectification order under s.20) results in the estate passing differently from the unamended will, IHTA 1984 s.146 applies. Under s.146, the IHT position is recalculated as though the rectified will had been the original will — the order is treated as taking effect from the date of death. This prevents the rectification from triggering a second IHT charge. HMRC is effectively told: 'this is what the will actually said'; (4) SPOUSE EXEMPTION AND RNRB: if the unamended will failed to direct assets to the surviving spouse (because of a clerical error), the spouse exemption may not have been available. After rectification, the corrected direction to the spouse restores the exemption, potentially eliminating a significant IHT charge. RNRB similarly: if the error caused the home to pass to a non-qualifying person, rectification directing it to direct descendants restores the RNRB; (5) INHERITANCE ACT 1975 INTERACTION: where rectification changes who benefits from the estate, it may affect the position of Inheritance (Provision for Family and Dependants) Act 1975 claimants. A claimant whose claim was based on the unamended will may need to reassess their position against the rectified will. An IPFDA 1975 claim and a rectification application can run in parallel; (6) THE LESSON FOR WILL DRAFTING: Marley v Rawlings could have been avoided entirely with simple care at execution — ensuring each testator signs their OWN will. Solicitors should mark each will clearly; conduct an execution meeting at which they confirm which document each testator is signing; and check the attestation clause specifically confirms the identity of the document signed.