Estate of Phillips [2009] JRC080

When and in what circumstances can the Court exercise its jurisdiction to rectify a will of deceased? Can a will not signed by the testator but by another, in error, be admitted to probate?

This was an application by the widow of the deceased in which relief was sought in respect of the will of the deceased which had, in error, been signed by the widow, so that it could be admitted to probate. The deceased and his widow had, in error, previously signed the other's will. The mistake only came to light when the deceased died.

The widow had sought two alternative forms of relief; (1) a declaration that the will had been signed erroneously, was a valid will and should be admitted to probate; or (2) a declaration in similar terms to (1) but with an order for rectification of the document so as to enable it to be admitted to probate. In an earlier case, Re Vautier [2000] JLR351 the Royal Court held that the Court does have jurisdiction to rectify a will but that the remedy should be used 'sparingly and with extreme caution'. The Judgment in Re Vautier also makes it clear that only a will signed by the testator can be admitted to probate.

On the basis that it was clear from the affidavit evidence submitted in support of the application that there had been a simple and genuine mistake when the wrong will was passed to each testator for signing, an order for rectification was made. It was clear in this case that the mistake was a simple and genuine one. This judgment highlights the point that the Royal Court's approach to rectification of wills is almost identical to the approach to be adopted vis-à-vis rectification of a trust deed i.e. there must be sufficient evidence of error, evidence of a genuine mistake and no other practical remedy available.