Rectification
What is Rectification?
Rectification is an equitable power to alter a transactional document to ensure that it conforms to the parties intentions. It is an application of the equitable maxim that ‘equity looks to substance, not form’.
Rectification is not available:
- To change the substance of the underlying transaction: Ashcroft v Barnsdale and others [2010] EWHC 1948.
- Where the defects in the document are too fundamental or widespread: Fairstate Ltd v General Enterprise & Management Ltd [2010] EWHC 3072.
Rectification of Contracts
A contract can be rectified if it is apparent that something has gone wrong when recording the language of the contract. It applies only if the parties reached a prior agreement, but due to an error the written document does not record both parties’ intentions: Frederick E Rose (London) Ltd v William H Pim Jnr & Co Ltd [1953] 2 QB 450.
The prior agreement must either be:
- A concluded contract; or
- A ‘continuing common intention’, usually evidenced by an ‘outward expression of accord’: Munt v Beasley [2006] EWCA Civ 370.
Unilateral mistake cannot be relied on for rectification (Riverlate Properties v Paul [1975] Ch 133) unless the other party is aware of that mistake (Roberts and Co Ltd v Leicestershire [1961] Ch 555) or unconscionably intends the other party to be mistaken: Commission for the New Towns v Cooper (Great Britain) Ltd [1995] Ch 259. For example, it might be granted where one party suspects the other is mistaken, and takes action to prevent them discovering the mistake.
‘Convincing proof’ of these requirements is required: Joscelyne v Nissen [1970] 2 QB 86.
The justification for rectification is that the parties have essentially already entered into a contract (though this is strictly not required) before the written document is created. As part of this, the parties have a right that the written document will properly reflect this agreement. Equity will enforce this right.
While rectification of a contract is an exercise in giving effect to the parties’ intentions, it is distinct from contractual interpretation on two grounds: Tartsinis v Navona Management Co [2015] EWHC 57
- Contractual interpretation is based on ascertaining the parties’ objective intentions. It is controversial whether rectification seeks to give effect to their subjective or objective intentions. Legatt J in Tartsinis favoured the subjective approach, while the court in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38 held that the parties’ intentions must still be ascertained from the perspective of the reasonable observer.
- Precontractual negotiations are not admissible evidence when interpreting a contract. They are admissible evidence of the parties’ intentions when seeking rectification, by contrast.
Rectification of Wills
If a will fails to carry out the testator’s intentions due to an error in recording or understanding their instructions, the court may rectify the will document: Administration of Justice Act 1982, s.20.

There is no need to show that the testator specified the words to be used in the document: Stephenson v Stephenson [2004] All ER (D) 35.

If the mistake is the solicitor’s fault, the document will be rectified if they did not consider the significance or effect of the words used: Re Segelman (deceased) [1996] 2 WLR 173.
Rectification of Trusts
Rectification of a trust document is available if: Racal Group Serves Ltd v Ashmore [1995] SCT 1151
- There is clear evidence that the settlor subjectively intended that the trust would achieve a particular effect.
- Due to an error in the document, this intention was not recorded.
- The issue is capable of being contested (whether or not the parties all agree that rectification should occur).