Guernsey Legal Resources

    The rectification of a will of realty is a remedy to be used sparingly and with extreme caution, since the testator is no longer present to explain his intentions and the parties may have their own reasons to seek rectification. However, if the court is satisfied by clear and compelling evidence (such as an ambiguity on the face of the will, e.g. by reason of the failure of the testatrix’s advocate to include in her will, as instructed, a devise of her realty to her surviving husband, thereby creating an intestacy as to that property) that a mistake has been made and that the words used in the will do not reflect the testator’s intentions, it may exercise its discretion to grant rectification so that those intentions may be carried out. An applicant should therefore make full and frank disclosure of all the material facts. In rectification, there is no reason or justification for drawing a distinction between a deletion and any other change.

    In the absence of Guernsey authority and detail in the Norman customary law relating to the rectification of wills of realty, regard has to be paid to other French authorities (In re Vibert, 1987–88 JLR 96, dicta of Dorey, Commr. applied), which lay down the principle that it is of paramount importance to ascertain the intention of the testator, and that extrinsic evidence may be introduced in order to do this (Pothier, Coutumes d’Orléans, vol. 2, para. 150, at 497; para. 154, at 499–500 (1821 ed.)).