Reluctance and regret over will rectification

'It is a conclusion I arrive at, I have to say, with some reluctance and regret.' These are HHJ Cooke's concluding words in the recent case of Kell v Jones [2013] All ER (D) 153 (Jan) but they equally express my feelings on the outcome of this case. Yet again the failures of the law of rectification with regard to wills have led to an unfair result, a result that punished a solicitor for being honest, left a testatrix's intentions unsatisfied and deprived the intended beneficiaries of roughly £100,000.

In December I wrote about the unfairness and illogical nature of the current law on the rectification of wills (Solicitors Journal 156/48, 18 December 2012, 'Rewarding the negligent, punishing the diligent'). I pointed out that the rule refusing, under any circumstances, rectification for a legal mistake caused unfair results, was unjustified, arose from a misunderstanding of the law. Most worryingly of all, it rewarded the gross negligence and dishonesty of will drafters. I concluded by hoping that in the next case common sense would triumph over past mistakes and the anomaly (rectification is allowed for legal mistakes in all other documents, including unilateral settlements) would be abolished. Unfortunately, HHJ Cooke, constrained by the mistakes of others, refused to do so and instead Kell v Jones stands as a marker illustrating all that is wrong with the current law.

Few cases

In Kell a testatrix intended to leave the residue of her estate to 15 family members only. Her solicitor, Mr Pannifer, drafted a clause which he believed accomplished this but, as all parties agreed, did not. Instead it added an additional four beneficiaries who stood to receive £25,000 each.

This case, to my knowledge, was the first time such a matter came before the courts. Given that will drafters are not infallible and undoubtedly make legal mistakes this is surprising, even taking into account settled cases. I strongly suspect the reason for the dearth in these cases is that a disproportionate number of drafters, when the issue is raised, suddenly find themselves admitting to gross negligence in failing to apply their mind to clauses at all (which is classified as a 'clerical error' and for which rectification is granted) rather than admitting to the less culpable error of thinking properly about each provision of the will and then making a legal mistake (for which no rectification is granted).

Unlike others, however, Mr Pannifer stuck with his story despite considerable motivation and presumed circumstantial pressure to alter his account. Had he said that he did not truly apply his mind to the significant or effect of the clause rectification would have been granted and he would have escaped from a potential £100,000 negligence action. HHJ even indicated (at paragraph 34) that if Mr Pannifer had read and focussed on the words to some extent but not given full thought to their effect then rectification might have been granted.

Honesty punished

In the circumstances I compliment Mr Pannifer on his honesty but it will, unfortunately, be presumably punished with a very expensive negligence claim. On the other hand if he had been less honest and confessed to not applying his mind or, worse still, if he had adopted a grossly negligent practice of never really applying his mind to the significance of any clause he drafted then he would have been rewarded and avoided the expensive negligence claim. From any point of view '“ public policy, interests of justice, fairness, logic '“ this is a ridiculous situation.

I hoped that when a situation such as this came before the courts then, given that there had been no other reported cases in this area, the court would be brave enough to defy the dicta of previous cases and make the sensible and just decision of allowing rectification. Unfortunately HHJ Cooke felt bound, rightly or wrongly, by the dicta of previous cases and refused to do so. The only consolation is that in his final paragraph HHJ Cooke mentioned the possibility of the court's jurisdiction being expanded by a decision at higher level.

To expand the doctrine further the courts would have to recognise that HHJ Cooke's view that rectification is not available for legal mistakes is based only on obiter comments made in Segelman [1995] 3 All ER 676, comments which he should not have felt bound by. The courts would need to focus on ascertaining and enforcing the testator's intentions and not on the definition of 'clerical error'. They could do so by acknowledging that while the ordinary usage of 'clerical error' does not include legal mistakes it also does not include the Segelman extension.

Therefore, just as the ordinary usage of 'clerical error' did not hinder justice in Segelman so it should not hinder justice in cases like Kell.

Above all else, a move away from Kell requires the courts to recognise the unfairness of the current situation whereby rectification depends, not on the drafted terms or the testator's instructions or intention, but on the solicitor's degree of thought. Hopefully in the future the courts will recognise this and make the necessary expansion. Until then we, like Mr Pannifer, are stuck with Kell and HHJ Cooke's 'reluctance and regret' will be scant comfort to those hurt by the unfairness of the law.