Eade v Hogg & ors [2021] WTLR 507

WTLR Issue: Summer 2021 #183

In the matter of: THE ESTATE OF MICHAEL JOHN KIRTLEY NODES (deceased)

DONALD KEITH EADE

V

1. ROWLAND ANTHONY RYMER HOGG

2. IAN CHRISTOPHER DONALDSON

3. ERNEST JAMES ODDS

(as personal representatives of Michael John Kirtley Nodes deceased)

4. NICHOLAS TREVOR KIRTLEY NODES

5. CANCER RESEARCH UK

6. PATRICIA ANN NODES

Analysis

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.

Held:

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 [1] 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 …
This content is only available to members.

Counsel Details

Alexander Learmonth QC (New Square Chambers, 12 New Square, Lincoln’s Inn, London WC2A 3SW, tel 020 7419 8000, email clerks@newsquarechambers.co.uk), instructed by Hart Brown (Resolution House, Riverview, Walnut Tree Close, Guildford, Surrey GU1 4UX, tel 01483 887766, email info@hartbrown.co.uk) for the claimant.

Nina Ferris, solicitor of Hill Dickinson (105 Jermyn Street, St James’s, London SW1Y 6EE, tel 020 7283 9033, email nina.ferris@hilldickinson.com), attended for the first to third defendants.

The fourth defendant neither appeared nor was represented.

Edward Hewitt (5 Stone Buildings, Lincoln’s Inn, London WC2A 3XT, tel 020 7242 6201, email clerks@5sblaw.com), instructed by Michelmores (12th Floor, 6 New Street Square, London EC4A 3BF, tel 020 7659 7660, email enquiries@michelmores.com) for the fifth defendant.

James McKean (New Square Chambers, 12 New Square, Lincoln’s Inn, London WC2A 3SW, tel 020 7419 8000, email clerks@newsquarechambers.co.uk), instructed by Druces (Salisbury House, London Wall, London EC2M 5PS, tel 020 7638 9271, email info@druces.com) for the sixth defendant.

Cases Referenced

Legislation Referenced

  • Administration of Justice Act 1982, ss20-21