Pead v Prostate Cancer UK & ors [2023] WTLR 1089

Analysis

James Murray McKay (the deceased) left a will dated 3 August 2016 (the will).

Clauses 4.1 – 4.3 of the will were pecuniary legacies to a number of the deceased’s family members (the family members). Clause 4.1 gifted £50,000 each to the deceased’s stepson and wife, clause 4.2 gifted £10,000 to the deceased’s step great-granddaughter, and clause 4.3 gifted £20,000 each to three step grandchildren.

Clauses 4.4 – 4.8 were legacies to a number of charities (the charities). Clauses 4.4 and 4.5 each gifted £2,000 to Macmillan Cancer Support for the benefit of stated causes, clause 4.6 gifted £6,000 to Macmillan Cancer Support for the benefit of a stated cause, clause 4.7 gifted £5,000 to Cancer Research UK and clause 4.8 gifted £12,000 to Prostate Cancer UK.

Clause 11 gifted the deceased’s residuary estate as follows:

‘Subject as above my Trustees shall hold my Residuary Estate upon trust for such of the beneficiaries named in Clauses 4.1 to 4.8 inclusive absolutely as shall survive me and in accordance with the provisions relating to each gift.’

The claimant, the deceased’s stepson, claimed that the court should:

1. (1) rectify clause 11 so as to refer to clauses 4.1 – 4.3 inclusive instead of clauses 4.1 – 4.8 inclusive; and
2. (2) construe ‘and in accordance with the provisions relating to each gift’ to determine whether the residuary estate should be divided pro rata or equally between the residuary beneficiaries and, if equally, whether by sub-clause or named beneficiary.

The charities, as defendants, invited the court to construe or rectify clause 11 so as to divide the residuary estate equally between the clauses 4.1 – 4.8 beneficiaries.

Held:

1. (1) Although the will drafter had been called by the claimant to give evidence, she was not in substance or reality a witness of the claimant. Permission was granted to the claimant to cross-examine her. An analogy was to be drawn with an attesting witness of a will being treated as a witness of the court.
2. (2) There was insufficient evidence of the deceased’s intentions to order rectification of clause 11 to refer only to clauses 4.1 – 4.3, even though the phrase ‘those people’, which normally refers to human beings, had been used in an attendance note.
3. (3) Clause 11 of the will was ambiguous as it did not make clear how the residuary estate was to be divided.
4. (4) The charities had failed properly to advance a claim for rectification, which should have been brought by counterclaim stating upon which ground under s20(1) of the Administration of Justice Act 1982 reliance was placed. The only ground could be a clerical error, but there was in any event no evidence of a clerical error or how the mistake had come about. Rectification of clause 11 was refused.
5. (5) Clause 11 should be construed as dividing the residuary estate between each beneficiary named in clauses 4.1 – 4.8 pro rata according to the proportion that each beneficiary’s legacy bore to the total gifts made.

JUDGMENT DEPUTY MASTER TEVERSON: [1] This claim concerns the last will and testament dated 3 August 2016 (‘the will’) of James Murray McKay (‘the deceased’) who died on 11 February 2021. The primary relief sought by the Claimant is an order for the rectification of the will pursuant to s20 of the Administration of Justice …

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