In In the matter of re Estate of Shumka ( JRC 159) the Royal Court recently considered an application by executors to rectify a will to include provisions that had been revoked from the deceased's previous will.
The deceased, a resident of Canada who had formerly held assets in Canada, the United Kingdom and the Channel Islands, died in November 2010 leaving two wills. The first related to the deceased's assets in Canada and the second (dated December 31 1993) to assets in the United Kingdom and the Channel Islands. In January 2006, having confirmed that assets were no longer held in the Channel Islands, a will (dated January 26 2006) was drafted that made no reference to the Channel Islands. The deceased's 2006 will consequently revoked the previous wills insofar as they related to the United Kingdom and the Channel Islands.
On the deceased's death, it was discovered that in late October 2006, unknown to the deceased, shares that had been owned by the deceased in GUS plc transferred to Experian Group plc (a company incorporated in Jersey, Channel Islands) through a demerger. This resulted in the intestacy of the Channel Islands' assets. The executors of the deceased's estate therefore sought to have the will of the deceased rectified to include the assets of the Channel Islands.
Two issues arose for the court to decide:
- Did the court have jurisdiction to rectify wills?
- Were the circumstances sufficient for the award of such a remedy?
Jurisdiction to rectify a will
Rectification of a will relates to the deletion, substitution and/or addition of words to allow for the true intentions of the testator to be carried out. However, in most common law jurisdictions, such as England and New Zealand, the rectification of a will is restricted to the deletion from a will of words that had been included in error.
The court cited In the Estate of Vautier (nee Boyle) ( JLR 351), which provided Jersey with its own precedent in allowing for the rectification of wills to be achieved by the deletion, substitution and/or addition of words. However, in Vautier it was made clear that the remedy of rectification must be used sparingly and with extreme caution in such cases, as the testator is no longer present to inform the court of his or her intentions.
Test for rectification of wills to be awarded
The court adopted the test laid down by Vautier as follows:
- There must be clear and compelling evidence that a mistake was made in relation to the will;
- The words in the will must be contrary to the testator's intentions; and
- The applicant must have made full and frank disclosure of all the material facts.
The court was satisfied that the testator was unaware as to the new developments of her holding in GUS plc, and in light of the way that the testator kept her testamentary affairs, it was extremely unlikely that the testator would intentionally leave the assets to devolve on intestacy. It was therefore evident that a mistake had been made when the Jersey assets had been excluded from the testator's current will.
Thus, the court found that the current will did not reflect the testator's intentions. In addition to the court being satisfied that the applicants had made full and frank disclosure, the rectification of the will was allowed.
This case makes clear that the rectification of wills should not be restricted to the mere deletion of words within a will, but should also allow for the substitution and/or addition of words. As stated by the court in Vautier:
"if the court can make [a deletion] so as to correct a manifest error and make the will accord with the testator's clear intentions, why should it not be able to make another type of change [such as a substitution or addition] to achieve exactly the same result?"
The court in this case sensibly applied Vautier and the deceased's clear intentions were put into effect.
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