True meaning

Lord Neuberger held in Marley v Rawlings that, when constructing or interpreting a will, the court wants to find the testator’s intention and in that regard, it should be viewed in the same way as a contract. In relation to a ‘clerical error’ (under section 20(1)(a) of the Administration of Justice Act 1982), it has a wider meaning. It should not be a given a precise or technical meaning and must be applied in the context of any particular case to avoid too fine a distinction in its application.

In Brooke v Purton, the first case after Marley v Rawlings, with which I was involved, the court reaffirmed and applied these principles. It is a useful reminder of the greater ambit now afforded to the court in respect of construction and rectification.

The problem with the will in Brooke related to clause 6, which purported to establish a discretionary trust for there to be a gift of the deceased’s business property assets to the trustees.

Unfortunately, the drafting solicitors had used a standard precedent clause for an NRB discretionary trust suited to using the spousal exemption for IHT and “in simply copying that precedent, she [the drafter] failed to appreciate that, in the absence of a spouse [as was the case] and her exemption, its wording was not only inappropriate but would frustrate what she intended to achieve”.

The result was that a proper application of the rogue clause caused the gift to fail, leaving the property to pass in accordance with the gift of residue. Such an interpretation lead to an absurdity in that the discretionary trust was completely ineffective, contrary to the apparent intentions of the deceased.

However, the ruling in Marley v Rawlings was applied. David Donaldson QC sitting as a deputy High Court judge applied the broader principles of interpreting wills to look at the “surrounding circumstances” and direct evidence of the testator’s intention.

As per contracts, the parties’ intentions were ascertained by identifying the meaning of the relevant words in light of the natural and ordinary meaning of those words, the overall purpose of the document, any other provisions of the document, the facts known or assumed by the parties at the time the document was executed, and common sense. He struck-out the rogue clause.

In looking at the application based on rectification, the judge declined to rule on that point (it being unnecessary, having regard to the finding on construction) but observed that the facts corresponded with a ‘clerical error’ because the will failed to carry out the testator’s intentions, as a result of a clause that had not been deleted, in circumstances in which the draftsman had not applied her mind to its significance or effect.

Indeed, Lord Neuberger in Marley v Rawlings specifically included in the definition of ‘clerical mistake’ situations where a solicitor inserted a wrong clause because they had cut and pasted a different provision from what was intended, as was the case in Brooke.

It is often not until the testator
has died that an error in a will
becomes apparent – either because
of an ambiguity in the wording
used or a mistake – in which case, recourse must be had to the court for construction of the will or to rectify a will under section 20 of the Administration of Justice Act 1982.

It is clear now that, following
the ruling in Marley v Rawlings as
used in Brooke v Purton, the court,
when interpreting ambiguous
or meaningless words in a will,
looks at the testator’s intentions
in the same way as a contract.

Further, as far as rectification is concerned, clerical errors cover a
wide ambit. This will give comfort to practitioners who, because of an inadvertent slip or misunderstanding, must call on the court to put it right.

Lloyd Junor is a senior associate at Thomas Eggar

He writes the regular in-practice article on wealth structuring for Private Client Adviser

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