Slattery v Jagger & ors [2015] EWHC 3976 (Ch)

Analysis

The claimants (the executors of the estate of Mr Jagger) applied for construction or alternatively rectification of the last will of Mr Jagger dated 10 June 2011 (the 2011 will). It was common ground that the 2011 will was valid and revoked an earlier will dated 5 April 2007 (the 2007 will).

Mr Jagger made the 2011 will following the death of two of his sons from his first marriage. It was professionally drafted. Under the 2007 will his second wife received a life interest in the matrimonial home. The 2011 will represented a departure from this intention.

The 2011 will contained, in clause 3, a clause which reads as follows:

‘I GIVE DEVISE AND BEQUEATH my beneficial share (defined as “my Share”) in (or in the future proceeds of sale of) any freehold or leasehold property (defined as “the Dwelling”) which my Wife and I co-own as principal residence at my death and I DECLARE that this gift is to be free not only of any money charged or otherwise secured on my share but also of any money charged or otherwise secured on the dwelling itself (and that all such money should be paid free of tax out of my residuary estate I shelve [sic] the cost of discharging any security and any interest falling due before discharge) continuing for her own use and benefit absolutely.’

This clause gave rise to difficulties; the expression ‘my wife’ was a term defined in clause 2 of the will, which appointed Mrs Jagger (therein defined as ‘my wife’) and Mr Jagger’s stepson, Mr Graham Slattery, as his executors and trustees. The words ‘I shelve’ created difficulty. Clause 3 also omitted to identify any object of the gift in clause 3.

The claimants’ argued that by a clerical error, the words ‘to my wife’ were omitted from clause 3and that the testator intended by clause 3 of his will to pass his share in the property at 39 Chichester Close, Burnley to Mrs Jagger absolutely. Accordingly the claimants brought a claim for:

1. 1) A declaration that on the true construction of the will the testator’s share in the property at 39 Chichester Close, Burnley, passes to Mrs Jagger; alternatively
2. 2) An order pursuant to s20 of the Administration of Justice Act 1982 for the rectification of the will by the inclusion of the words ‘to my wife Ruby Victoria Jagger’ at clause 3of the will, on the grounds that they had been omitted as a result of a clerical error.

The draftsperson of the 2011 will gave evidence that she was wholly satisfied that the name of the beneficiary had been left out as a clerical error and that Mr Jagger had intended for his share of the property described within that clause to pass to his wife. She described the error in her evidence as a ‘human error’.

Held:

1. 1) Clause 3 was either meaningless or ambiguous in that it did not identify the object of the gift (Williams (Deceased), In Re [1985] 1 WLR 905 distinguished). This was an obvious omission of words from clause 3 (Reading v Reading [2015] EWHC 946 (Ch)distinguished). Extrinsic evidence was admissible under s21 AJA 1982.
2. 2) Mr Jagger’s clear intention was to give his wife his share in the matrimonial home for her own use and benefit absolutely.
3. 3) Even without resorting to extrinsic evidence, the court could correct the clear omission from clause 3 by reading into it the words ‘to my wife’ either after the words ‘I give, devise and bequeath’ or immediately before the words ‘and I declare that this gift… ‘
4. 4) The omission came about when the typist, who prepared the will on the dictation of the draftsperson, misheard what she had dictated. This error was not picked up by the draftsperson. This error could be corrected as a matter of construction by reading in it the words ‘to my Wife’.
5. 5) (obiter) if the judge was wrong on the construction of clause 3, then:
6. a. The will failed to carry out the clear intentions of Mr Jagger.
7. b. The mistake clearly rose as a consequence of clerical error.
8. c. The claimants had discharged the high standard of proof required in a claim for rectification.
9. d. The will should be rectified by the insertion of the words ‘to my Wife’.
10. 6) (obiter) If the document is poorly drafted, asclause 3 of this will clearly was, or is self-evidently on its face conceptually unsound, the requirement for cogent evidence is reduced (Tartsinis v Navona Management Co [2015] EWHC 57 (Comm) and Sargeant v Reece [2007] EWHC 2663 (Ch) considered).
11. 7) Under CPR r44.2, the court has a discretion as to whether to make costs payable by one party to another. It was not reasonable for the defendants to have contested either the rectification claim or the construction claim (Marley v Rawlings (Number 2) [2014] UKSC 51 distinguished). However, it would not be right to make an order for costs against the defendants when the solicitors who had drafted the will had given the claimants an indemnity and therefore the burden of the claimants’ costs was going to fall upon the party who was responsible for this litigation in the first place, namely the solicitors. Accordingly the proper costs order was no order as to costs.

JUDGMENT HHJ HODGE QC: [1] This case concerns the last will of the late Mr Albert Jagger who died on 27 March 2014 at the age of 89. Prior to his death, he had made two wills which are relevant for present purposes. The first was executed on 5 April 2007 and was made not …

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