Austin v Woodward & anr [2011] EWHC 2458 (Ch)

Analysis

The claim (issued on 3 November 2010) was made by the claimant for rectification of her mother’s will dated 6 October 2003 under s20 of the Administration of Justice Act 1982 and for permission to extend time for the issue of the claim form as probate of the will had been granted in June 2009. On the wording of the unrectified will a property, which was the claimant’s home, passed into residue in which the claimant had a life interest with remainder to the third and fourth defendants (the testator’s grandchildren). The testator’s previous will had provided that the claimant would, in the circumstances that had occurred, take the property absolutely if the testator was not survived by her husband by 30 days. The evidence was that the testator had not intended there to be any change between the 2003 will and the previous will dated 1993. However, an error had been introduced by the testator’s solicitors whereby the text of new precedents was used without considering the consequences on the gift to the claimant. The use of the new precedent meant that the gift to the claimant of the property was effective only if the testator’s husband predeceased the testator, but it did not take effect if, as in fact occurred, the husband survived the testator but died less than 30 days after her death. The property fell into residue in which the claimant had only a life interest. Rectification was not opposed.

Held

1. (1) A mistake of this nature was a clerical error and therefore rectification could be order under s20 of the Administration of Justice Act 1982.
2. (2) The evidence established that there had been a clerical error in this case and the will would be rectified accordingly so that the claimant took an outright interest in the property.
4. (3) Time was extended because, although the claimant had been in possession of the will from before the time for making the claim had expired, it was only after some time that she become aware of the facts that justified the application for rectification and thereafter time was legitimately taken up instructing new solicitors due to a conflict of interests and instructing counsel.

JUDGMENT MR DANIEL ALEXANDER QC: [1] This is a claim commenced by a claim form dated the 3 November 2010 whereby the claimant, Caroline Margaret Gossett-Austin, claims rectification of the will dated 6 October 2003 of her mother, Joyce Margaret Austen, to whom I shall refer as the testator. [2] The claim is made under …

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