Analysis
Dr Robert Munroe Black (the ‘testator’) and his wife, Beatrice Maud Black, were a childless couple who made mirror wills dated 29 September 1998. These were professionally prepared by Lucas & Co, which was subsequently taken over by Simpson Millar. Subject to the payment of several pecuniary legacies, on the death of the survivor the wills directed the division of the residuary estate into 52 parts for the benefit of six named individuals as to six parts each and a number of charities as to two parts each.
The testator and his wife amended their wills by codicils dated 2 August 2005 by deleting two of the named individuals (ie a total of 12 parts) and adding two charities (ie a total of four parts). Unfortunately, however, the direction to divide the residuary estate into 52 parts was not changed to a direction to divide it into 44 parts. The testator’s wife died on 25 September 2013 and the testator, who did not change his will, died on 19 February 2018. Probate was obtained on 24 June 2019 in respect to an estate with a net value of £937,476.42. If the residuary estate was divided into 52 parts, each would be worth £18,028.39, and in the event of a 44-part division, each was worth £21,206.28.
On 11 July 2019 Master Kaye determined, on a true construction of the will, that a partial intestacy had arisen with respect to eight parts of the net residuary estate. The claimant, who was the sole proving executor of the testator’s estate, sought rectification of the will as republished by the codicil by replacement of the words ‘fifty-two parts’ with the words ‘forty-four parts’, or alternatively by the omission of the words ‘as to the division into fifty-two parts’.
Held (granting the application):
It had not been possible to find the original solicitors’ file relating to the making of the will. However, a number of testamentary documents in unexecuted form, some of which with handwritten notes on them, were found when clearing out the house. These included a document entitled ‘Synopsis of Wills May 1998’ with a manuscript reference to the division of the residuary estate into ‘fifty-two parts’. Someone had then crossed out the names of the two individuals who were to receive six parts each and substituted the word ‘forty’ for the words ‘fifty-two’.
Section 20 of the Administration of Justice Act 1982 gave the court power to rectify a will where it was satisfied that it was so expressed so as to fail to carry out the testator’s intentions in consequence either of a clerical error or of a failure to understand their instructions. The first question was whether the testator’s intention was to dispose of the whole of his estate, and not leave a partial intestacy as to eight parts of the residuary estate, for which purpose it was necessary to examine the extrinsic evidence. In this case:
- default provisions for the redistribution of any shares which failed to vest in a given individual or charity were a strong indication against a partial intestacy;
- the intrinsic evidence of the provisions themselves suggested that careful attention had been given to how the estate should be distributed; and
- the extrinsic evidence of the testamentary documents showed the care which had been taken to ensure that the numbers added up.
In particular, the substitution of the word ‘forty’ for the words ‘fifty-two’ was a clear indication that both the testator and his wife intended that the number of parts which were available should match the number of gifts that were made and there should be no balance to fall into a partial intestacy. The will as amended by the codicil failed to carry out those intentions and it was apparent that the solicitor who had done the drafting had failed to appreciate there was a mismatch between the change in gifts and the splitting of the residuary estate into 52 parts. The reconciliation of the figures did not require any particular legal expertise and so did not point to a misunderstanding as to the instructions. It was just a clerical oversight – a failure to balance the figures so that at the end of the day the number of gifts disposed of coincided with the total of the parts.
The court had the power to rectify and should rectify in this case so as to give effect to the intentions of the testator. This should be done by ordering that clause 9 of the will be rectified so as to read ‘forty-four parts’ instead of ‘fifty-two parts’.
JUDGMENT HHJ KRAMER: [1] I will give an extempore judgment but you will have to accept it is not going to be as fluent as it would be if I had produced a reserved judgment, but it does seem to me that this is something I can deal with in an extempore way, and people …Continue reading "Barrett v Hammond & ors [2021] WTLR 51"