Communication breakdown

Murray, Turk & Murray v Robertson & Barrett was heard before Robert Miles QC sitting as a deputy judge of the Chancery Division on 7 and 8 February 2012. It is as yet unreported, although was picked up by The Daily Telegraph on 14 February 2012. The case concerned an application pursuant to section 20(1) of the Administration of Justice Act 1982 for the rectification of the will of Bridget Murray who died on 27 July 2010, aged 87 years (‘the deceased’).

Taking issue

The deceased’s last will was made four months earlier on 23 March 2010. Bridget left three children: David, Catherine and John (the claimants). ?A fourth child Monica had predeceased her mother in 2007. Monica had two (now adult) children: David and Caroline (the defendants). Following Monica’s death, the deceased had updated her will so as to leave her residuary estate to her three surviving children – or to the survivors of them.

That will expressly excluded the ambit of section 33 of the Wills Act 1837, which provides: “Where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.”

The deceased’s last will had been intended as a simple restatement of that will, but with the replacement of an executor. But in giving instructions for that new will the deceased had decided, having been invited to consider the matter, that while she still wished her residuary estate to go to her three children (the claimants) she now wished, contrary to the previous will, that in the event of one of those children pre-deceasing her, she wished that child’s children to take that one third share of residue (it was a helpful piece of evidence for the claimants in establishing their late mother’s intention that a ?‘one-third’ share had specifically been referred to).

When the will was drafted, however, it referred simply to “my children”, omitting to name the three surviving children. This, said the draftsman, was a matter of pure inadvertence resulting from his use – unedited – of a standard precedent clause. The clause expressly stated that in the event of a child predeceasing the deceased that child’s children were to take in substitution.
The effect was to divide the residue in four – one share for each claimant and one for the defendants.

Under section 20(1) of the Administration of Justice Act 1982, if a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence:?

1. of a clerical error; or

2. of a failure to understand his instructions,

3. it may order that the will shall be rectified so as to carry out his intentions.

In Re Segelman [1996] Ch 171 Chadwick J (as he then was) proposed a three-stage test: “First, what were the testator’s intentions with regard to the dispositions in respect of which rectification is sought. Second, whether the will is so expressed that it fails to carry out those intentions. Third, whether the will is expressed as it is in consequence of either (a) a clerical error or (b) a failure on the part of someone to whom the testator has given instructions for the will to understand those instructions.” He also held that: “In my view, the jurisdiction conferred by section 20(1), through paragraph (a), extends to cases where the relevant provision in the will, by reason of which the will so expressed fails to carry out the testator’s intentions, has been introduced or... has not been deleted, in circumstances in which the draftsman has not applied his mind to the significance or effect.”

Brush off

In Murray the judge found that the deceased’s intentions were to benefit only her surviving children. This, having been contested, the claimants had suggested that one possible motive for the deceased not extending the gift of residue to the defendants was that the deceased was a very traditional Irish Catholic and one of them had been ‘living in sin’ (albeit with a man she subsequently married).

Of course the deceased’s motives were irrelevant (albeit a non-lawyer would be forgiven for thinking otherwise from The Telegraph’s headline: “Granddaughter struck out of £220,000 will for ‘living in sin’ with fiancé”). The meat of the case from a lawyer’s point of view was on the third limb of Chadwick J’s test – what was the ambit of ‘clerical error’? Could a mistake such as the one made by this draftsman come within that definition?

The defendants argued that the draftsman had plainly applied his mind to this clause. Indeed the change from the first will to the second, whereby the issue of the claimants were to take in substitution rather than the survivors of the claimants, had come about as a result of the draftsman’s invitation to the deceased to consider the issue. The clause was thus in one sense there at his instigation. He could not disavow it and say that he had not ‘applied his mind to its significance or effect’.

The counterargument that the judge accepted was that it was not necessary for the test to succeed that the draftsman be an automaton. He had plainly given some consideration to the clause but not to the particular significance or effect which gave rise to the will’s failure to give effect to the testatrix’s instructions. There is no sufficient policy reason to justify the degree of restriction which the defendants sought to put on the rule.

There is authority to support the claimants’ position, albeit it tends to arise in cases at first instance where there was no opposition to the rectification (the court still being required to exercise its discretion in favour of the application). Murray at least provides authority in a contested case.

Add ons

Such a case was Austin v Woodward & another [2011] EWHC 2458 (Ch) where Daniel Alexander QC, sitting as a deputy judge, held that although the boundary between a clerical and a non-clerical error is not always easy to draw, there had definitely been a clerical error in this instance. A relevant provision of the will was introduced in circumstances in which the draftsperson had not applied his or her mind to its significance and effect. In that case a standard precedent clause had been inserted containing the inapt proviso: “If the beneficiary survives me for 30 days.”

Another such case was Price & others v Craig [2006] EWHC 2561 (Ch), where an erroneous reference to ‘the property fund’ rather than to ‘the trust fund’ inadvertently gave rise to a partial intestacy. But bearing comparison with Murray, ‘the property fund’ had seemingly been a creature of the draftsman’s own instigation. It was impossible to say that he had not applied his mind to the clause but it was clear on the evidence that the clause as drafted had an unintended consequence. Rectification was ordered.

On a different point, the judge referred to the ruling of Judge Hodge QC (sitting as a judge of the High Court) in Pengelly & another v Pengelly [2007] EWHC 3227 (Ch) and particularly to this passage: “It seems to me that there is a potential distinction to be drawn between a situation in which the error alleged occurs as a result of the inadvertent omission of a word or words, rather than the inadvertent inclusion of a word or words. It seems to me that, where a word or words has or have been mistakenly omitted, different considerations may arise, and there may well be a greater potential for characterising the error as one of a clerical nature rather than the section 20(1)(b) situation of a failure to understand the testator’s instructions.”

As the rectification sought here was the addition of the names of the claimants after the word ‘children’ (and a further addition of the word ‘such’ before another use of ‘children’) this application came within the ambit of this suggested increased degree of latitude. The lesson is clear – where circumstances permit proceedings should be drafted so as to seek rectification through the addition ?of words.

Mark Dubbery is a barrister at Pump Court Chambers