Introduction

The recent case of Barrett v Hammond & Ors (2020) (Ch) has provided another example of the circumstances in which a court will be persuaded that a will should be rectified.

This article will consider the instances in which the court will order the rectification of a will and contemplate whether the current position of the law is satisfactory.

Administration of Justice Act 1982

The Administration of Justice Act 1982 (AJA), Part IV, s20(1) provides the court with the power to rectify a will in instances where the will has failed to carry out the testator's instructions as a result of a clerical error, or a failure by the draftsman to understand his instructions.

The correct application of this provision was set out as a three-stage process by Chadwick J in Re Segelam [1996] Ch 171. The court must identify:

  1. what the testator intended;
  2. whether or not the provision in question fails to carry out the testator's intentions; and
  3. whether that failure is in consequence of a clerical error, or failure to understand his instructions.

Any application made under this section must be submitted within six months of taking out a grant of representation as per S20(2) AJA.

There is scope for the court to consider applications made out of time. In Re Kelly (Deceased) [2020] EWCH 245 (Ch) the court concluded that there was reason to be more flexible when considering applications made out of time when considering will rectification, as opposed to claims under the Inheritance (Provision for Family and Dependants) Act 1975.

A clerical error

The words 'clerical error' have not been given a statutory definition and as such it has been left to the courts to interpret their meaning.

Typically, errors of this kind tend to be typographical in nature. In the case of Bell v Georgiou [2002] EWHC 1080 (Ch) it was stated that a clerical error may occur when "someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert."

For example, in Joshi v Mahida 2013 [EWHC] 486 (Ch), the draftsman included the phrase: "I give one half of my share", instead of the intended: "I give my one half share." In this instance, the court was satisfied that this was a clerical error and the intended words should be substituted in.

The scope of what amounts to a clerical error was widened by the Supreme Court in the case of Marley v Rawlings [2014] UKSC 2. In this case the mirror wills of a husband and wife had been incorrectly executed, with the husband signing the wife's will and vice-versa.

The Court concluded that a will should be interpreted in the same manner as a contract. To that end, the purpose of the interpretation should be to find the intention of the parties "by interpreting the words used in their documentary, factual and commercial context." This includes, among other things, giving consideration to the overall purpose of the document, and common sense.

Adopting this approach, it was held that the fact that the original 'will' was technically not a will as it was not executed in accordance with section 9 of the Wills Act did not matter. If this were to act as barrier to rectification then much of the operation of s20(1) AJA would be removed.

The court in this case favoured the wider meaning of 'clerical error', one in which encompassed a mistake arising out of office work, "such as preparing, filing, sending, organising the execution of, a document", as opposed to the narrow meaning which would merely involve mistakes relating to the copying or writing of a document.

The wider interpretation as set out in Marley v Rawlings was applied in Brooke v Purton [2014] EWHC 547 (Ch), where the court allowed the rectification of a will in which the drafting solicitor had included a clause creating a trust for the deceased’s wife, despite the fact the deceased was not married. 

The court's approach to interpretation of the testator's intention as set out in Marley v Rawlings permits interpretation by reference to "what the testator told the drafter of the will, or by what was in notes he made, or earlier drafts of the will."

This was the evidence considered by the court in Barret v Hammond & Ors (2020) (Ch). In this case a 1998 will had been executed to distribute the residue of the testator's estate into 52 separate parts, divided between multiple named beneficiaries from his wife's side of the family. A codicil executed in 2005, removed two individuals as beneficiaries from six parts each of the residue, and re-distrusted 4 parts to charity. This left eight parts of the residue undistributed.

The court considered evidence from the claimant to support the application for the rectification of the will. This included a document handwritten by the deceased's wife, with calculations showing exactly how all of the 52 parts were to be distributed after removing the two beneficiaries, in order to ensure that no part of the residue fell into partial intestacy, along with a letter to their solicitor seeking the amendments. The solicitor had not appreciated the effect of his drafting of the codicil, to the extent that the testator5's intentions were not followed, and s20(1) AJA applied.

Failure to understand the testator's instructions

The case of Kell v Jones & Ors [2012] EWHC B30 (Ch) provides a demonstration of the limitations on the Court's ability to order the rectification of a will. Where the will drafter inserts words into the will in the mistaken belief that they reflect the testator's intention, then this will not satisfy the requirements under s20(1) AJA.

In Kell it was the testatrix's intention to provide for four charities in her will, by way of pecuniary legacies. However, the testatrix intended that her residuary estate be divided only between family members and did not intend to include the charities as residuary beneficiaries.

The solicitor included, at clause 4 of the will, pecuniary legacies to several family members and pecuniary legacies to the four charities.

However, clause 6 of the will directed that the testatrix's residuary estate was to be divided among such of the beneficiaries mentioned in clause 4 that would survive her. The reference in clause 6 to 'beneficiaries who would survive' did not limit the beneficiaries of the residue to those who were mortal.

As such the will, as drafted, included the charities as residuary beneficiaries of the estate and did not carry out the instructions of the testatrix.

However, it was held that this error was not caused by a failure to understand the testatrix's intentions, as the Court held that the solicitor "knew what his instructions were, knew what was intended to be achieved by those words and thought he had done so by the words that he chose."

The claimant in this case, Mr. Kell, can consider himself unfortunate for finding himself in something of a legal blind spot. It appears that Mr Kell would have been better served had the solicitor who prepared the will mis-construed the instructions, rather than intently but mistakenly seeking to carry out the instructions. Indeed, Cooke J remarked that he was passing his judgment reluctantly, due to the lack of legal recourse available to the court.

It should be noted that in such circumstances, it is open to a claimant to consider a claim in professional negligence.

Conclusion

Recent case law suggests that the court is willing to apply a generous interpretation and application of s20(1) AJA. This accords with the comments of Lord Neuberger, who confirmed the intention of the AJA to be "making the law on wills more flexible and rendering it easier to validate or "save" a will than previously".

The current position and the application of the law by the Courts provides a satisfactory means of redressing error from the point of view of the testator, the solicitor and any beneficiaries of the will and more often than not enables the testator's intentions to be reflected.