Intention Sufficient Basis for Rectification of Will

When a woman updated her will in 2003, she had no way of knowing that a simple change to a precedent document could cause problems for her executors several years later. There was no intention to change one of the main provisions of the will, which was that if her spouse failed to survive her for 28 days, the family home should pass to her daughter.

Under the terms of the original will, the property would be put in trust, with her husband having the right to live in it for life. It would then pass to her daughter on her husband’s death. However, the new precedent left the gift conditional on her husband surviving her by 28 days. When he did not do so, the error in the new document became clear as the gift to the daughter ‘failed’ and the house then fell into the ‘residue’ of the estate.

Since this was clearly not the woman’s intention when she updated her will, the family went to court to have it rectified. Despite the fact that the claim was not brought until some months after probate was granted, so was technically ‘out of time’, the court permitted rectification.