Mr Nodes (the deceased) passed away on 8 March 2019. The deceased’s estate included a large shareholding in a family company (the company). Each of the deceased’s wife and his former colleague (the claimant) also possessed small shareholdings in their own name. By his will, dated 22 October 2015, the deceased left his large shareholding in the company on trust for his wife for life, subject to an overriding power of appointment in favour either or both of his wife and his former colleague, allowing for an appointment of shares ‘up to such number… as shall when added to the existing shareholding of both of them amount to 26% of the issued share capital of the company as at the date of my death’. The claimant sought a declaration that on its proper construction the power permitted appointments that would bring each of his and the deceased’s wife’s shareholdings up to 26%, rather than such as would bring their collective share up to that level. He sought to support this claim, in part, by appeal to extrinsic evidence. He also sought an order rectifying the power, such that it would allow for appointments bringing the share of each to 26%, and also such that the trustees would be required to make such appointments within a reasonable time, as opposed to merely having the discretion to make such appointments.
The word ‘both’ in the clause providing for the power, taking into account the surrounding circumstances, was ambiguous. In light of that fact, extrinsic evidence was admissible pursuant to s21(1)(c) of the Administration of Justice Act 1982, for the purpose of determining the deceased’s intentions concerning the clause. Considering the extrinsic evidence, it was clear that the deceased had intended that the clause should provide for appointments such as would produce a shareholding of up to 26% each, and therefore, on its true construction, the clause allowed for such appointments. Evidence to that effect from the deceased’s wife and former colleague was to be preferred to the conflicting evidence of the solicitor who had drafted the will. Alternatively, the use of the word ‘both’ in the relevant clause had been a clerical error and would be rectified pursuant to s20(1)(a) of the Administration of Justice Act 1982, as would the provision of discretion to the trustees in the exercise of the power, which had been the product of a misunderstanding on the part of the drafting solicitor as to his instructions.JUDGMENT DEPUTY MASTER LINWOOD: Introduction  This is, at its simplest, a claim to rectify or construe a will by replacing the word ‘both’ with ‘each’. My determination of that will have financial consequences for most of the parties. Mr Michael Nodes (‘the Deceased’ or ‘Mr Nodes’) made a will dated 22 October 2015 (‘the …