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Reluctance and regret over will rectification

We need a judge brave enough to depart from the unfair precedent that does not 
allow the rectification of wills for legal mistake, says Kevin Shannon

1 February 2013

“It is a conclusion I arrive at, I have to say, with some reluctance and regret.” These are HHJ Cooke’s concluding words in the recent case of Kell v Jones [2013] All ER (D) 153 (Jan) but they equally express my feelings on the outcome of this case. Yet again the failures of the law of rectification with regard to wills have led to an unfair result, a result that punished a solicitor for being honest, left a testatrix’s intentions unsatisfied and deprived the intended beneficiaries of roughly £100,000.

In December I wrote about the unfairness and illogical nature of the current law on the rectification of wills (Solicitors Journal 156/48, 18 December 2012, ‘Rewarding the negligent, punishing the diligent’). I pointed out that the rule refusing, under any circumstances, rectification for a legal mistake caused unfair results, was unjustified, arose from a misunderstanding of the law. Most worryingly of all, it re...

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