Helen Galley gives her expert insight into the Rectification of Wills

2 April 2020

In the build up to our Probate conference in October there will be information and material posted as appetisers to the main event. Here Helen Galley has produced useful legal and case content and summary on the rectification of wills.

RECTIFICATION OF WILLS

THE EFFECT OF MARLEY V RAWLINGS

In the absence of fraud the common law jurisdiction to rectify a Will is extremely limited.  In relation to testators who have died since 1982 there is a statutory jurisdiction to rectify a will as contained in section 20 of the Administration of Justice Act 1982. This provides as follows:

(1)          If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence—

(a)        of a clerical error; or

(b)        of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.

(2)        An application for an order under this section shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out.

(3)        The provisions of this section shall not render the personal representatives of a deceased person liable for having distributed any part of the estate of the deceased, after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out, on the ground that they ought to have taken into account the possibility that the court might permit the making of an application for an order under this section after the end of that period; but this subsection shall not prejudice any power to recover, by reason of the making of an order under this section, any part of the estate so distributed.

(4)        The following are to be left out of account when considering for the purposes of this section when representation with respect to the estate of a deceased person was first taken out—

(a)        a grant limited to settled land or to trust property,

(b)        any other grant that does not permit any of the estate to be distributed,

(c)        a grant limited to real estate or to personal estate, unless a grant limited to the remainder of the estate has previously been made or is made at the same time,

(d)        a grant, or its equivalent, made outside the United Kingdom (but see subsection (5)).

(5)       A grant sealed under section 2 of the Colonial Probates Act 1892 counts as a grant made in the United Kingdom for the purposes of subsection (4), but is to be taken as dated on the date of sealing.

Further unlike the position with the interpretation of contracts extrinsic evidence of the testator’s intention is admitted as an aid to interpretation of a will.  See section 21 of the AJA 1982. As can be imagined there has been much discussion in the authorities as to what is included in the phrase “clerical error”.

The scope of the statutory jurisdiction to rectify  a will was considered in detail by the Supreme Court in Marley v Rawlings [2014] UKSC 2. The facts of this case were very extreme.  In this case husband and wife gave instructions for mirror image wills under which each left his or her estate to the other and the survivor left his estate to the appellant. Unfortunately by mistake the solicitor who drafted the wills gave each the wrong one to sign so that the husband signed the one intended for the wife and vice versa. The wife died first and the error was not noticed.  The husband took her estate.  On the later death of the husband the error was picked up and the respondents who would take his estate on intestacy challenged the admission of the will to probate.  The appellant argued that the will should be rectified.  At first instance and in the court of Appeal the respondents were successful on the basis that only a valid will could be rectified.  This will was not valid as it was not executed in accordance with section 9 of the wills Act.  A will could not be rectified to make  it valid.  The beneficiaries under the intended will appealed to the Supreme Court and succeeded. The Court ordered rectification.

Lord Neuberger  explained that the approach to interpretation of the will now followed  the modern contextual approach to interpretation of contracts as set out in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 i.e.  the court will give effect to the meaning that the document would convey to a reasonable person  having all the background knowledge  which would reasonably have been available  to the parties in the situation  in which they were at the  time of the contract.    Lord Neuberger suggested that it might have been possible to construe the will executed by the husband so as to give effect to his intention.   He preferred, however, to decide the case on the basis of rectification saying:  “ I can see no reason in principle why a wholesale correction should be ruled out as a permissible exercise of the Court’s power to rectify, as a matter of principle. On the contrary: to impose such a restriction on the power of rectification would be unprincipled – and it would also lead to uncertainty.”    He concluded that statutory rectification was available even if the document unrectified did not fulfil the requirements of a valid will: “It does not appear to me that a document has to satisfy the formal requirements of s.9, or of having the testators knowledge and approval, before it can be treated as a “will” which is capable of being rectified pursuant to section 20.”

It must, however, be the case that a will the instructions for and the execution of which took place at a time when the testator did not have the requisite degree of capacity could not be rectified to make it valid.

Lord Neuberger also commented on the meaning of clerical error for the purposes of section 20.   He said it should be given a wide meaning  for reasons of statutory interpretation  to give effect to the purpose of the legislation which was to make the law more flexible and to save more wills which would otherwise fail, together with a desire for coherence and consistency and because: “the term “clerical error” can, as a matter of ordinary language, quite properly encompass the error  involved in this case.  There was an error, and it can quite fairly be characterised as clerical, because it arose in connection with office work of a routine nature.  Accordingly, given that the present type of case can, as a matter of ordinary language, be said to involve a clerical error, it seems to me to follow that it is susceptible to rectification.”

Since Marley v Rawlings  there have been several cases where the principles set out have been approved and applied. In none of them have the facts been as extreme as in Marley.  The court has shown a preference for trying first to construe the will so as to give effect to the intention

In  Millar and Pearson v Millar [2018] EWHC 1926 (Ch)  the document being construed was in fact a lifetime trust.  Mr and Mrs Pearson co-owned a property.  They were beneficial tenants in common.  When Mrs Pearson died she left her residuary estate which included her  share in the property  to  the Claimants.  This meant Mr Pearson held the legal estate in the property upon trust as to 50% for himself and as to the other 50% for the Claimants in equal shares.   The Claimants consulted solicitors who advised a lifetime trust of their half share the effective provisions to be that it was held on trust for Mr Pearson for his lifetime and then on trust for any spouse of the Claimants for life and thereafter for the Claimants themselves.  The claimants were settlors and trustees and were in fact beneficiaries.  In error however clause 13 of the trust deed provided that no provision of the deed could operate directly or indirectly so as to benefit the settlor or the spouse of the settlor. This was totally contrary to the  earlier provisions of the deed notably clause 4.2.  The question was how the contradiction could be resolved.   The claim was put on two different bases (a) construction; and (b) rectification.   On the construction point the Court considered the speech of Lord Hoffmann in West Bromwich that construction would be considered in the light of the factual matrix i.e. what the document would mean to a reasonable person  having all the background knowledge which would reasonably have been available  to the parties in the situation in which they were at the time of the contract. The meaning it might convey to a reasonable person is not the same thing as the meaning of its words.  A purposive approach as in Manai Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 should be used.  Words are to be given their natural and ordinary meaning but where from the background it is clear that something has gone wrong with the wording one should not construe the document so as to attribute to the parties an intention which they plainly could not have had.  See Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191.

The Court concluded that a trust deed which was normally a unilateral document (as is a will) should be construed in the same way as a bi or multi partite document.

As a result the two clauses (4.2 and 13) could not stand together.  The purpose of a clause like clause 13 is usually to prevent adverse tax consequences as a result of the settlors reserving a benefit.  In the Millar case the settlors deliberately wished to reserve such a benefit.   The trust deed was construed so that clause 13 gave way to clause 4.2.   The Court also found that if it had not decided the matter on the construction point as it did it would have found for the claimants on their claim  for rectification so as to delete clause 13.

Burnard  v Burnard [2014] EWHC 340 (Ch) is a Wills case.  In clause 2 of his Will the deceased gave his shares in  Grangeway Properties Ltd (“Properties”) to his sons in equal shares and by clause 3 he gave his residuary estate to  his second wife, Stella.  The argument was that the reference  to Properties should have been to Grangeway (Contractors) Limited (“Grangeway”) and the reference to Properties was a mistake. They argued  that the Will should be rectified or that it should be construed so that the reference to Properties should be taken as referring to Grangeway.  The deceased had never had an interest in Properties but controlled Grangeway.  Marley v Rawlings was approved and followed in relation to construction. As the deceased never had any shares in Properties he was clear that the deceased intended to refer to Grangeway and so construed the Will accordingly. It was unnecessary to consider rectification but came to the view, obiter, that had it been there would be a powerful argument in line with Marley that the error was clerical in nature and so capable of correction by rectification.  Stella also brought an application for provision out of the estate  under the Inheritance (Provision for Family and Dependents Act 1975 which was not fully determined.

Michael Brooke and others v Louise Purton and others [2014] EWHC 547 (Ch)  was another wills case.  It was clear that the Will had gone seriously wrong in the drafting and the court was asked to put matters right by construction or rectification.    The estate was quite large and the testator had five children.  He lived with the first Defendant to whom he was not married, and their two young children.  His other children  were adult.  The Testator was concerned about his children taking a large sum too soon and a discretionary will trust was suggested.   The solicitor drafted a nil rate band discretionary trust into which, she informed the testator, assets attracting  agricultural relief or business property relief could be transferred at the lower value after applying the relief and additional property could then be added  in to make the value up to the then £312,000, later £325,000, nil rate band.  In clause 4 of the Will the testator made gifts to his trustees as beneficial legatees of about £100,000 and by clause 5 gave his wife his share of a residential property he owned jointly with her.  By clause 6 he set up the discretionary trust and by clause 8 he gave his residuary estate to the first Defendant and his children in equal shares. There was a conflict between clause 6.1.3 on the one hand and clause 6.2.1and 6.2.2 on the other. 6.1.3 set out a definition of what was the nil rate band sum as the statutory nil rate band sum less 6.1.3.1 such part of the value transferred as “is attributable to property (other than the legacy given by this clause) with respect to which the transfer of value on my death is chargeable as opposed to exempt” and  6.1.3.2 the value transferred by chargeable transfer in the 7 years before death including PETs which became chargeable.  The result of this was the nil rate band sum would be a negative figure as the chargeable transfer exceeded £1.5m.  Clause 6.2.1 directed the transfer of the business and agricultural property which had an aggregate reduced value of less than the nil rate band sum. As a result if clause 6.1.3 was applied no business or agricultural property would be transferred into the trust.  The Judge ordered that in accordance with Marley v Rawlings the will should be construed as if 6.1.3 was omitted.  He also concluded that consideration of section 20 of the AJA would lead him the same conclusion had it been necessary.

Gledhill and another v Arnold [2015] EWHC 2939 (Ch) – This was another Wills case and was a case of a clerical error.  The testator’s will  provided that “the house fund” i.e. the value of his house would be held for his widow for her lifetime so that she should be able to live in the house if she so wished and thereafter the house fund should be held upon the trusts of residue. Residue was to pass to the widow absolutely.  The Claimants, the children of the testator argued that in fact his intention was that the house fund should pass to them in equal shares. The judge refused to construe the Will as claimed but rectified it under the principles set out in Marley v Rawlings re clerical errors.

In the Matter of the Estate of Florence Rosemary Harte (deceased)[2015] EWHC 2351 – this again was a Wills case where the issue was the construction or rectification of the rusts of residue.  The provision set out 10 beneficiaries and in some cases said they were to receive one part of residue and in others one tenth. Further some of the beneficiaries were charities which were misnamed but given the correct charity registration numbers.  The will was construed so that one part meant one tenth and was rectified in relation to the names of the charities.

Slattery and Jagger v Jagger and others [2015] EWHC 3976 (Ch). This is another wills case.  In this case the testator’s will in 2011 when he was 86 contained a gift of his share in or the future proceeds of sale of any freehold or leasehold property which he and his wife co-own as principal residence at the date of his death.    The wording was strange in relation to what was intended in relation to the mortgage and also failed to identify a beneficiary.   It was argued that the words “to my wife” were omitted from the gift and that the testator’s intention was to give his interest in the property to her.  It should be construed as such or alternatively rectified. The Court was satisfied that the intention was to include such words and to give the share to the wife.  He construed the Will accordingly and again said that if he was wrong on that the rectification claim would have succeeded.

 What can be deduced from the cases is that if there is an ambiguity the court will consider construction but where the will is sensible and clear on its face but does not reflect intention then the issue will be rectification.

Helen Galley