On occasion, a written agreement may not reflect what the parties’ actually intended. Rectification of the agreement may be available to ensure it reflects the parties’ intentions. Rectification is an equitable remedy designed to correct errors in the recording of terms in written legal instruments. It is limited to cases where a written instrument has incorrectly recorded the parties’ antecedent agreement. In other words, rectification is not available where the basis for seeking it is that one or both of the parties wish to amend not the instrument recording their agreement, but the agreement itself.
Where the error in the subject agreement is the result of a mistake common to both or all parties to the agreement, rectification is available upon the court being satisfied that there is a prior agreement whose terms are definite and ascertainable; that the agreement was still in effect at the time the instrument was executed; that the instrument fails to accurately record the agreement; and that the instrument, if rectified, would carry out the parties’ agreement.
The party seeking rectification must show not only the putative error in the instrument but also the way in which the instrument should be rectified in order to correctly record what the parties intended to do. The applicable standard of proof is the balance of probabilities. A court will typically require evidence exhibiting a high degree of clarity , persuasiveness and cogency before substituting the terms of a written instrument with those said to form the parties’ true intended course of action.*
William Poulos, Barrister
* This Blog is not intended as a substitute for legal advice. If you require such advice, a lawyer should be consulted to advise on the specific circumstances of your case.