Rectifying the record in Jersey: lessons from Re the C Trust [2025]

Rectification is an equitable remedy that allows the Royal Court to correct trust instruments where a genuine mistake has been made so that the instrument does not reflect the true intention of the parties.

Rectification allows the Court to ensure that the outcome intended by the parties is achieved, but it cannot be used as a method of achieving some other transaction which may have been more desirable in hindsight. 

What is the test for rectification?

The test for rectification is well established, with the requirements being set out in R.E. Sesemann Will Trust [2005] JLR 421 in 2005 and recently re-affirmed in Re the Maria Trust [2022] (2) JLR 37) (Maria Trust).

The criteria for the rectification test are as follows:  

1. the Court must be satisfied by sufficient evidence that a genuine mistake has been made so that the document does not carry the true intention of the parties

2. there must be full and frank disclosure

3. there must be no other practical remedy

4. rectification remains a discretionary remedy 

The standard of proof that a genuine mistake has been made is the civil standard –namely the balance of probabilities, as pointed out in Maria Trust. 

For a more detailed discussion of the development of the test for rectification, read: Jersey Royal Court clarifies and affirms the Jersey test for rectification.

Why was rectification needed in Re the C Trust? 

In Re the C Trust [2025] JRC 153 (the C Trust), the Trustee  of a Jersey discretionary trust, the C Trust, applied to the Court to rectify a deed of appointment which inadvertently appointed the entire trust fund to one of the beneficiaries of the C Trust (the Beneficiary) rather a cash amount of only £67,000 (the Cash Amount).  

The Cash Amount was intended to be the first in a sequence of steps to terminate the C Trust.  

The unintended effect of the error was to transfer the entirety of the C Trust’s assets, including shares in a BVI company, to the Beneficiary thereby terminating the C Trust. The error also increased the risk of substantial adverse tax consequences arising for the Beneficiary upon the subsequent liquidation of the BVI company.

The Court's finding in Re the C Trust

The Court was satisfied that the requirements for rectification had been met. It found there was ample evidence that the deed of appointment did not reflect the intention of either the Trustee or the Beneficiary.  

In addition, it found that the error would have been identified had the Trustee: 

1. clearly identified the objectives that they sought to achieve when they instructed their lawyers to draft the instrument of appointment

2. reviewed the documents once drafted to ensure they reflected those objectives

3. checked that the resolution for the execution of the instrument accurately reflected the nature and objective of the document to be signed

The Court ordered that the deed of appointment be rectified with retrospective effect to the date of the instrument, such that it reflected a simple distribution of the cash amount to the Beneficiary.  

What are the key takeaways for Trustees?

Rectification is a discretionary remedy

The Court has a discretion as to whether to grant rectification; it is not granted as of right. Trustees should be diligent in ensuring that trust instruments are carefully reviewed and sense-checked before execution to avoid unintended consequences.  

Trustees must not delay in seeking rectification  

Delay can be a relevant factor in the exercise of the Court's discretion, as shown in Exeter Settlement [2010] JRC 012. Trustees who become aware of an error have a duty to apply to correct it in a timely manner – unreasonable delays may result in the Court penalising the trustee in costs, as was the case in C Trust [2008] JRC 071. Delays may also affect the burden of proof and impact the quality and/or availability of evidence.  

Rectification cannot be used to improve the outcome of a transaction

The Court can rectify a deed which does not reflect the transaction which the parties intended to achieve. However,  the Court cannot use rectification as a method of allowing the parties to achieve some other transaction which, in hindsight, would have been more desirable as determined In The R.E. Sesemann Will Trust [2005] JLR 421.

In Re the C Trust, the Court was satisfied that it was not a case where the parties sought to achieve some other transaction which in hindsight would have been more desirable.  

Rectification is typically retrospective 

If granted, rectification typically has a retrospective effect.

Rectification applications can be heard in public

Rectification applications are typically (but not always) heard in open Court as they often arise as a result of mistakes by professional advisors, as seen in Re Representation of Saffery Champness Trust Co [2005] JRC 052.

However, as in C Trust, the Court is willing to order that such applications be heard in private and to anonymise the names of beneficiaries, the trust and / or settlors (but not the trustees) in any published judgment where there are cogent reasons for the matter to be heard in private.  

Rectification can be costly for the Trustee

Costs of rectification may be borne by the Trustee (not out of the trust fund) where the mistake was a caused by or not identified by the Trustee.  

How Ogier can help

Ogier can assist parties to apply to the Court to rectify trust instruments where a genuine mistake has been made such that the documents do not reflect the true intention of the parties.   

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Disclaimer

This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.

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