Rectification – Clerical error – Solicitor drafting will on testator's instructions
Kell v Jones and others: Chancery Division, Birmingham District Registry: 16 November 2012
The deceased, JP, passed away in January 2011. Shortly before her death, she had created a new will (the will). The claimant was one of two executors named in the will and was also a beneficiary of it. The first to fifteenth defendants were individual beneficiaries (the family members) and the sixteenth to nineteenth defendants were charities also named as beneficiaries (the charities).
The will provided for specific money legacies for all of the beneficiaries with the residue to be divided equally amongst 'such of the beneficiaries... as shall survive [JP]... in equal shares'. JP's solicitor, MP, considered that JP's intention had been for the residue to be distributed only amongst the family members, and further considered that the will as drafted effected that intention. The charities considered, and the family members agreed, that the wording of the will meant that the residue was to be distributed amongst all of the beneficiaries, including the charities. The claimant applied for rectification of the will to provide for the residue to be distributed only amongst the family members.
The issues that fell to be determined, pursuant to section 20(1) of the Administration of Justice Act 1982, were: (i) what were JP's intentions with regard to the dispositions in respect of which rectification was sought; and (ii) whether the will was expressed as it was in consequence of either: (a) clerical error; or (b) a failure on the part of someone to whom the testator had given instructions in connection with his will, to understand those instructions. The application would be dismissed.
The distinction between clerical errors and mistakes which were not inadvertent in that sense was firmly established and section 20(1)(a) of the act did not extend to errors that were made which were not per incuriam in the sense that they had not resulted from the draftsman having failed to advert to the significance of or effect of the words used in his draft (see ,  of the judgment).
Taking the evidence as a whole, it was, in combination, sufficiently convincing that the intention of JP in preparing her will had been that the residuary estate would be divided amongst the family members and not amongst all of the beneficiaries including the charities. However, the evidence of MP had been that he had believed that the will, as drafted, gave effect to JP's intentions and he still held that belief. Accordingly, the claim for rectification had to fail (see ,  of the judgment).Wordingham v Royal Exchange Trust Co Ltd  3 All ER 204 applied; Segelman, Re  3 All ER 676 applied; Morris, Re, Lloyds Bank Ltd v Peake (Hurdwell cited)  1 All ER 1057 considered.
Timothy Clarke (instructed by Gateleys) for the claimant; The first to fifteenth defendants were not represented and did not appear; Alexander Learmonth (instructed by Wilsons, Salisbury) for the charities.