Day & anr v Day [2013] EWCA Civ 280

WTLR Issue: June 2013 #130






The appellants appealed from a first instance decision by Mr Recorder Chapman QC on 15 May 2012, which refused their application for an order for rectification of a conveyance that was executed on behalf of their mother (Mrs Day) by her solicitor (Mr Froud) who was acting as her attorney. The conveyance was dated 6 June 1985. The conveyance had transferred Mrs Day’s home from her sole name into the names or her and her son (the respondent) as beneficial joint tenants. The purpose of the transaction was to enable borrowing to be secured against the property by the respondent. Mrs Day died on 21 December 2008 and by her will, executed in November 2008, she made a gift of the proceeds of sale of her property to her six children. The respondent had prepared Mrs Day’s will for her and yet had never seemingly corrected her misunderstanding that the property was an asset of her free estate. The appellants claimed that it was Mrs Day’s intention for the property to be conveyed to Mrs Day and the respondent to hold on trust for Mrs Day absolutely. The respondent said there was no express or implied agreement that he should not acquire a beneficial interest. The recorder held that the critical question to determine was whether the conveyance failed to embody Mrs Day’s intention. He concluded that Mrs Day never intended or understood that the conveyance vested a beneficial interest in the property in the respondent. He concluded therefore that if Mrs Day had personally executed the conveyance he would have made an order for rectification, however, as the conveyance was executed by Mr Froud as Mrs Day’s attorney, this precluded the right to rectification. In essence this was because Mr Froud, in preparing and executing the conveyance, had acted within the scope of the authority granted to him under the power of attorney. The claim for rectification was therefore dismissed, although the recorder was not comfortable with this result. On appeal the appeal was allowed and the judges held as follows:


  1. (1) The subjective intention of the settlor is relevant in such a case and it is not a legal requirement of a voluntary settlement that there is any outward expression or objective communication of the settlor’s intention, although in the absence of such it will be difficult as a matter of evidence to discharge the burden of proving that there was a mistake.
  2. (2) The recorder’s analysis was flawed as the doctrine of rectification is concerned with the failure of intention rather than the power and authority to effect a particular transaction. The intention of the principal and the scope of the agent’s authority are not synonymous concepts although they will often overlap and in the case of a voluntary settlement rectification hinges on whether the settlor executed the settlement in the mistaken belief that it implemented his intention.
  3. (3) Rather than being determined by the scope of the document authorising Mr Froud to act, Mr Froud’s actual authority was prescribed by any instructions expressly given by Mrs Day and the actual instructions to an agent may cast light in the actual intention of the principal.
  4. (4) As Mrs Day never formed any intention to confer a beneficial interest in her property on the respondent the recorder could only reject the claim for rectification if Mrs Day’s overriding intention was that the proposed transaction should be carried out in any way that Mr Froud determined. The recorder did not directly address this issue and apart from the generality of the power of attorney there was no evidence of that intention. Indeed the factual findings of the recorder where all inconsistent with any intention for Mr Froud to carry out the transaction as he may choose.
  5. (5) For rectification to be ordered the mistake made by the settlor must be of sufficient gravity to satisfy the test laid down in Ogilvie v Littleboy (1897) 13 TLR 399, which provides protection to a recipient against too ready an ability of the donor to seek to recall his gift. Here the mistake was of sufficient gravity.
  6. (6) Order for rectification granted.
JUDGMENT THE CHANCELLOR [1] The appellants, James Harry Day and Michael Harry Day, and the respondent, Terence Anthony Day, are the executors of the will of their mother, Eileen Alice Day (Mrs Day). Mrs Day died on 21 December 2008. [2] This is an appeal from the order of Mr recorder Chapman QC on 15 …
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Counsel Details


Mr Michael Norman (3 Paper Buildings, Temple, London, EC4Y 7EU, tel 020 7583 8055) instructed by Anthony Harris & Co (17 Elm Avenue, New Milton, Hampshire, BH25 6HE, tel 01425 638 288 for the appellant).

Mr Timothy Becker (Clerksroom, Equity House, Blackbrook Park Avenue, Taunton, TA1 2PX, tel: 0845 083 3000) instructed by Mr Terence Anthony Day by direct public access for the respondent.

Legislation Referenced

  • Powers of Attorney Act 1971