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Setting the record straight

Hugh Elder explains how to help clients seeking rectification of voluntary settlements

3 May 2013

The equitable remedy of rectification is the power of the court to change the wording of a document to reflect what the parties really intended where the document does not do so, for instance because of a mistake being made when it was drafted.

The underlying and essential rationale of the principle is that a person should not be prejudiced by the
terms of a written document if (a) those terms fail to give effect to the intention of the relevant parties (that is both parties in the case of a bargain, or the maker in the case of a voluntary transaction), and (b) reliance on the terms as written in that document against that person would be unjust in consequence.

One of the leading authorities for the rectification of a voluntary settlement is Re Butlin's S.T. [1976] Ch 251. In that case, the settlor Sir William Butlin (of holiday camp fame) had intended to provide that the trustees could take decisions by a majority. That is how he, the trustees (at least ...

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