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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Clarke v Brothwood & Ors [2006] EWHC 2939 (Ch) (16 November 2006) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2006/2939.html Cite as: [2006] EWHC 2939 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		16 November 2006

1. Introduction

1. This is an action for the rectification of a will pursuant to section 20 of the Administration of Justice Act 1982 in consequence of an unfortunate but clear mistake in the drafting. The Claimant is (with the first Defendant) an executor of the will and the partner in the firm responsible for the drafting error.
2. Whilst all sides recognise that there was a drafting error and that the will as drafted does not represent the intentions of the testatrix, there is a dispute between the parties as to whether it is an appropriate case for rectification.
3. Stephen Lloyd represented the Claimant. He applied for the rectification of the will to give effect to the true intentions of the testatrix. He contended that this was a plain case. Indeed it was suggested that the master could have dealt with it .
4. Thomas Entwistle represented the First Defendant. She is a co-executrix and one of the residuary legatees under the will. She stands to gain by the proposed rectification but was at one stage opposed to it. She took a neutral stand to the claim. She was, as I understand it, represented in case any adverse application was to be made in respect of costs.
5. Leon Sartin represented the Second and Third Defendants. They are the next of kin and stand to gain if and in so far as there is a partial intestacy. Mr Sartin contends that there should be no rectification. His principal point is that there was no clerical error here so as to bring the proceedings within section 20 of the Act. As a subsidiary point he contends that it is not clear what bequests the testatrix would have made if there had been no error.
6. Francis Barlow QC represented the Fourth and Sixth Defendant. They are two of the residuary legates and stand to gain if the will is rectified. They support the application for rectification in the terms sought by the Claimant.
7. The Fifth Defendant did not appear and was not represented before me. She is a residuary legatee and stands to gain from the proposed rectification. She has written to the Court expressing a neutral attitude to the claim but also expressing reservations about the actions of Mr Clarke.
8. At the outset of the hearing before me Mr Barlow Q.C sought to amend the position of his clients by raising a construction issue. He sought to contend that the will ought, as a matter of construction, be interpreted in such a way as to give effect to Miss Martin's intentions. Although his solicitors had mentioned the possibility of such an application to the Claimant's solicitors as long ago as August 2005, no steps had been taken to regularise the application. Mr Sartin made the point that he only knew about the application yesterday. In those circumstances he had not prepared himself for a construction argument. In those circumstances I allowed the Fourth and Sixth Defendants permission to amend but adjourned the argument on the construction issue. It will, of course, only be necessary to deal with it if and in so far as the rectification claim fails.

2. The evidence

9. The evidence comprised witness statements from Mr Dodds, Mr Clarke, Mrs Hall and Mrs Brothwood together with a number of relevant documents.
10. Mr Dodds, Mrs Hall and Mr Clarke are all partners in the firm of Mayo & Perkins of Eastbourne. Mr Dodds has no personal knowledge of the making the will. He made a witness statement because Mr Clarke was on sabbatical at the relevant time. He did however exhibit relevant documents from the will file. Mrs Hall was a trainee at the time the will was made. It is possible that she was present when Miss Martin was seen for the purpose of taking instructions for the will. A number of the documents have a reference on them that suggest that she may have been involved. She has no recollection of seeing Miss Martin or of being involved. Her evidence was thus of limited assistance and she was not cross-examined.
11. Mrs Brothwood has filed a witness statement in which she took a neutral position in the litigation. She made a number of comments critical of Mr Clarke. However she did not pursue the allegations at the trial or seek to cross-examine Mr Clarke.
12. Mr Clarke has produced 2 witness statements. His evidence is important and I shall deal with it below. He was cross-examined by Mr Sartin and Mr Barlow Q.C but not by Mr Entwistle.
13. In addition I was provided with the will file. It was common ground that it contained a number of relevant documents. These include an important file note taken by Mr Clarke when he took the instructions for the will, correspondence between Mr Clarke and Miss Martin, the draft wills with hand-written amendments by Miss Martin. I was also provided with the will itself and the grant of probate.

3. The Will

14. Before looking at the circumstances in which the will was made it is convenient to look at the will itself in order to understand the nature of the problem that has arisen.
15. The will is dated 31^st December 1993 and is properly executed. It was proved on 14^th October 2004 by the two named executors. Clauses 1 to 3 are uncontroversial. Clause 4 of the Will contains a specific gift of her personal chattels. By clause 5 Miss Martin left the residue of her estate upon trusts for sale and administration in conventional form and directed her Trustees (by paragraphs (a) and (b)) to pay the proceeds as to "a one-tenth share thereof" to each of two named charities and (by paragraph (c)) as to "a one-twentieth share thereof" to each of her four named godchildren with a substitutional proviso in favour of the children of a predeceasing godchild. Clause 6 contains an accruer clause expressed to operate in the event of the lapse of any share. The Will contains no other beneficial disposition of the estate.
16. On a literal construction of clause 5 of the Will 60% of the residuary estate is undisposed of. The contention of Mr Lloyd and Mr Barlow Q.C is that the Will should be rectified in such manner that the estate is divided not in fractional shares of ¹/_10th, ¹/_10th, ¹/_20th, ¹/_20th, ¹/_20th and ¹/_20th (which accounts for only 40% of residue) but in percentage shares of 10%, 10%, 20%, 20%, 20% and 20% (which accounts for 100%).

4. The making of the will

4.1. The will file

17. The process of drafting the will began with a meeting between Miss Martin and Mr Clarke which took place on 27^th April 1993. Mrs Hall may have been present. Miss Martin's instructions were recorded in the note of attendance taken by Mr Clarke. So far as relevant this reads as follows:-"Residue

1/10 Trinity Foundation Trust (details to follow)

1/10 Trinity Church [Holy] E/B1

1/20 to each godchild (names + addresses to follow) if they pred. then to children

at 21. if not to other godchildren"

18. Following the meeting, a draft will was prepared. The draft bears Mrs Hall's initials "PH". The draft was sent to Miss Martin by covering letter dated 4^th June 1993. Clause 6 of the draft provides that the Testatrix's residuary estate is to be held upon trust "as to a one-tenth share thereof" for each of the Foundation and Church A reference to Eastbourne and "as to a one-twentieth share thereof to each of my godchildren namely". A space is left for Miss Martin to provide the names and addresses of the godchildren.
19. Miss Martin returned the draft will to the solicitors with a number of hand-written alterations by letter dated 31^st August 1993. Miss Martin wrote the names and addresses of the four godchildren on the draft. She also made a number of spelling corrections, and enclosed a letter as to the wording of the gifts to the 2 charities.
20. A final draft of the will was prepared in which the names and addresses of the four godchildren are added to clause 5 (an earlier clause in the original draft was deleted). The final draft was sent to Miss Martin for her approval by letter dated 20^th October 1993.
21. The final draft was approved and an engrossment sent to Miss Martin for execution by letter dated 23^rd December 1993. The letter also responds to Miss Martin's concern that clause 5 should carry all her property not otherwise dealt with. On 31^st December 1993 the will was duly executed. It was returned to Mayo & Perkins by covering letter dated 3^rd January 1994 and they acknowledged receipt by letter dated 17^th January 1994. In early 2002 Miss Martin informed Mayo & Perkins, at the same time as arranging for an EPA, of a change of address for Katherine Brothwood and Patrick Keef.

4.2. Mr Clarke's evidence

22. In his witness statement Mr Clarke makes a number of points:

3. Although I have no recollection of the aforementioned meeting [27^th April 1993] it is inconceivable that I would accept instructions from a client which did not deal with the distribution of her entire residuary estate. If I genuinely believed that she wished to bequeath a ¹/₂₀th share of her residuary estate to each of her four godchildren it would have been blatantly obvious to me that 60% of her estate would pass on intestacy and in accordance with my usual practice I would not only make this abundantly clear to the client (at the meeting and in writing) but in all probability I would not, unless it were a last resort, prepare a will on that basis.

4. I have acted for Miss Martin on a number of occasions since 1993 and my recollection of her is as a professional and intelligent woman. From what I know of Miss Martin it is inconceivable that she would have knowingly only have bequeathed 40% of her residuary estate.

5. My hand written attendance note refers to …"one twentieth to each of the godchildren. I am firmly of the opinion that the reference … in my attendance note and subsequently subscribed in Miss Martin's will was an error on my part that for some unaccountable reason having referred to "1/10" passing to each of the charitable beneficiaries I continued using the figure "20" as a fraction rather than as a percentage.

23. In paragraph 7 of his later statement he states that he is sure that it was her intention to dispose of the entire residue in shares of 20%.
24. In cross-examination he agreed he was an experienced probate solicitor and he knew that it was important for him to take a careful note of instructions. He confirmed that he had no actual recollection of the meeting of 27^th April 1993 and was entirely reliant on his file note and other documents in his file. He had no independent recollection of any conversation with her.
25. He believed that Miss Martin was a senior member of the local health authority.
26. He was then cross-examined as to how the mistake occurred. It was suggested that there were two possibilities. Either Miss Martin could have said 20% and he mis-recorded it as "one-twentieth" or Miss Martin could have said "one-twentieth" and he could have taken down her instructions without commenting. My note of his answers is:

I would presume it to be my error because if Miss Martin had said one twentieth I would not have simply have accepted that, I would have challenged it.

27. Slightly later he said …

I think I had an aberration at that point

I cannot say why I wrote "one-twentieth"

I did not pick it up

It is possible that Miss Martin gave the instructions in fractions

My mistake was that I failed to spot the error

I appreciate that my error has created a lot of work for a lot of people. I do not think

I am as poor a solicitor as that. I think I would have challenged it.

28. In the course of his submissions Mr Sartin pointed out that as Mr Clarke had no recollection of the meeting with Miss Martin his evidence on this point can only be speculation. Mr Sartin made the point that in reality it was as likely that Miss Martin said "one-twentieth" and that was recorded by Mr Clarke without spotting the error as it was that Miss Martin said 20% and Mr Clarke recorded "one-twentieth". In the light of the file note he suggested that the former was more likely but as the burden was on Mr Clarke to establish the nature of the mistake he submitted it made no difference. To my mind there is force in these submissions and I accept them. I shall proceed on the basis that it is at least as likely that Miss Martin said "one-twentieth" as 20%.

5. The Act

29. The jurisdiction of the court to grant rectification of a will is contained in section 20 of the Administration of Justice Act 1982. Before 1983, there was no power to rectify a will. The furthest the court could go was to omit spurious words. After 1983, the court may rectify wills but only in two situations:-

"(1) If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequences:-

(a) of a clerical error; or

(b) of a failure to understand his instructions, it may order that the will shall be rectified to carry out his intentions"

30. In Re Segelman2 Chadwick J explained that section 20(1) requires the court to examine three questions:-

[1996] Ch 171 at 180

"First, what were the testator's intentions with regard to the dispositions in respect of which rectification is sought. Secondly, whether the will is so expressed that it fails to carry out those intentions. Thirdly, 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 in connection with his will to understand those instructions"

31. Mr Sartin accepted that the will as drafted failed to carry out Miss Martin's intentions. He accepted that she did not intend to be intestate. In my view he was plainly right to do so.
32. He did not however accept that it was clear what her intentions would have been if the mistake had been drawn to her attention. He suggested in paragraph 20 of his skeleton argument that she might have wished to increase the share to be given to the charities. I cannot accept that submission. As Mr Lloyd pointed out there has never been any suggestion that she intended to give more than 20% of her estate to charity. Furthermore the fact that she plainly did not intend to die intestate and that 4 x 20% amounts to the remaining 80% are, to my mind clear indications that she intended to leave 20% to each of her godchildren.
33. Thus the remaining question is whether the failure of the will to carry out Miss Martin's intentions was in consequence of "a clerical error".

5.1. clerical error.

34. I was referred to 3 authorities on the meaning of clerical error in this context.
35. In Williams deceased³ Nicholls J (as he then was) said:

(In passing, I note that there is no claim for rectification in the present case. It was suggested in the course of argument that s 20 could not apply to a home-made will such as the one before me, because 'clerical error' in s 20(1)(a) suggests a clerk. I do not accept this. A testator writing out or typing his own will can make a clerical error just as much as someone else writing out or typing a will for him.)

36. The statement is clearly an aside, but it has been referred to with approval in both of the other cases to which I have been referred. Mr Barlow Q.C made the point that if a testator can make a clerical error when he types out a will, the position should be no different if the testator makes the same error but gets his neighbour to type it out for him.
37. The next authority to which I was referred was the decision of Mr Edward Evans Lombe QC (as he then was) in Wordingham v Royal Exchange Trust Ltd⁴ After considering a number of authorities he said this:

It seems to me that the words 'clerical error' used in s 20(1)(a) of the 1982 Act are to be construed as meaning an error made in the process of recording the intended words of the testator in the drafting or transcription of his will. That meaning is to be contrasted with an error made in carrying his intentions into effect by the drafter's [1985] 1 AER 964 at 969 [1992] Ch 412 at 419 choice of words and with a mistaken choice of words because of a failure to understand the testator's intentions, a circumstance covered by sub-s (1)(b).

38. This led Mr Sartin to make the following submission in paragraph 9 of his skeleton argument:

9. The remedy is only available under limb (a) if it can be established that there was "an error in the process of recording the intended words of the testator". It is not sufficient that the testator made an error. If a solicitor is employed to draft the will, the testator cannot make a clerical error himself. The error must be on the part of the solicitor. It is a "clerical error" if (and only if) it is made in the process of recording the testator's intended words. If the solicitor accurately records the words used by the testator in drafting the will, there can be no clerical error.

39. This submission is at the heart of Mr Sartin's case and I shall return to it later. Both Mr Lloyd and Mr Barlow Q.C drew my attention to further passages from the judgment in Re Segelman where Chadwick J considered the point in considerable detail. In a lengthy analysis that considered both the authorities that I have mentioned he commented that the test proposed by Mr Edward Evans-Lombe Q.C may well be too narrow. In view of its importance to the submission made by Mr Sartin I shall set it out in full:

The third question in relation to the claim for rectification is whether the failure of cl 11(a) to carry out the testator's intention is in consequence of a clerical error or a failure to understand his instructions, or has come about for some other reason. I am satisfied that the reason why cl 11(a) with its proviso did not carry out the testator's intention was that Mr White failed to appreciate on 5 May 1992 that the proviso which he had included in the draft will on his own initiative had become inapt once he had been instructed that the second schedule was to take the form which it did. Once he had a list for inclusion as the second schedule which included the issue of five of the six named beneficiaries Mr White ought to have deleted the proviso to cl 11(a) from the draft will. Failure to do so was a mistake. That mistake did not arise from any failure by Mr White to understand his instructions. Mr White told me that he simply forgot that the proviso was there. The question is whether that mistake can properly be regarded as a clerical error for the purposes of s 20(1).

In this context I find assistance in the passage in Mortimer on Law and Practice Relating to Probate (1927, 2nd edn) pp 91–92, which is cited with approval by Latey J in Re Morris (decd) [1970] 1 All ER 1057 at 1066, [1971] P 62 at 80. The editor of Mortimer suggests a distinction between two types of case:

'First. Where the mind of the draftsman has really been applied to the particular clause, then, whether the error has arisen from the fact that he misunderstood the instructions of the testator, or, having understood the instructions, has used inappropriate language in seeking to give effect to them, the testator who executes the Will is—in the absence of fraud—bound by the error so made as if it were his own, even if the mistakes were not directly brought to his notice; and the Court will not omit from the probate the words so introduced into the will. Secondly. Where the mind of the draftsman has never really been applied to the words of the particular clause, and the words are introduced into the Will per incuriam, without advertence to their significance and effect, by a mere clerical error on the part of the draftsman or engrosser, the testator is not bound by the mistake unless the introduction of such words was directly brought to his notice.'

The distinction between (i) the introduction of words into a will per incuriam without advertence to their significance and effect (described in that passage as 'a mere clerical error'), (ii) the introduction of words to which the draftsman has applied his mind but in relation to which he has failed to understand his instructions and (iii) the introduction of words to which the draftsman has applied his mind with a proper understanding of his instructions but which (perhaps through failure properly to understand the law) do not achieve the objective which he and the testator intended, was preserved when the law relating to the rectification of wills was altered by s 20(1) of the 1982 Act. The distinction had been recognised by the Law Reform Committee in their nineteenth report ... Interpretation of Wills (Cmnd (1973)); a report which led to, but which was not wholly carried into effect by, the 1982 Act. The alteration of the law made by that Act gives power to the court to order rectification—as distinct from the former power merely to order the omission of words from probate—and extends that power to cases of failure to understand instructions, in addition to mistakes in consequence of clerical error; but there is no reason to think that that which the editor of Mortimer would have recognised as a clerical error in 1927 was not intended to be picked up by of s 20(1)(a)of the 1982 Act.

In Re Morris (decd) the mistake lay in a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the pecuniary legacy given by cl 7(iv). The error was that of her solicitor in giving effect to her instructions. Latey J described the position in these terms ([1970] 1 All ER 1057 at 1067, [1970] P 62 at 81):

'The introduction of the words "Clause 7" instead of "Clause 7(iv)" was per incuriam. The solicitor's mind was never applied to it, and never adverted to the significance and effect. It was a mere clerical error on his part, a slip. He knew what the testatrix's instructions and intentions were, and what he did was outside the scope of his authority.'

Mr Evans-Lombe QC, when sitting as a deputy judge in this division, considered the scope of the phrase 'in consequence of clerical error' in his judgment in Wordingham v Royal Exchange Trust Co Ltd [1992] 3 All ER 204, [1992] Ch 412. The mistake with which he was concerned lay in a failure to include in a new will made in 1989 a clause exercising a testamentary power of appointment in favour of her husband which had been conferred on the testatrix under the will of her father. The relevant clause exercising that testamentary power had been included in two earlier wills. The judge was satisfied that the testatrix intended that her 1989 will should include a provision precisely in the terms of the relevant clause in her immediately preceding will. He concluded ([1992] 3 All ER 204 at 210, [1992] Ch 412 at 419):

'It follows that in my judgment [the solicitor's] error in failing to include in his draft new will a paragraph following the provisions of cl 4 of the 1979 will was an error made in the process of recording the intended words of the testatrix and, in my judgment, constituted a clerical error within s 20(1)(a) [of the 1982 Act].'

In reaching that conclusion the judge had considered the passage in Mortimer to which I have already referred and the judgment of Latey J in Re Morris (decd). He had also considered the Australian case of R v Comr of Patents, ex p Martin (1953) 89 CLR 381 and the nineteenth century English case of Re Sharp's Patent, ex p Wordsworth (1840) 3 Beav 245, 49 ER 96. It was, I think, observations in those patent cases which led him to the view that—

'the words "clerical error" used in section 20(1)(a) of the 1982 Act are to be construed as meaning an error made in the process of recording the intended words of the testator in the drafting or transcription of his will.' (See [1992] 3 All ER 204 at 210, [1992] Ch 412 at 419.)

If taken out of context there is some danger, perhaps, that the judge's reference to 'the intended words of the testator' might be thought to require a finding that the testator had actually reached the point of putting into words the relevant provision which was to give effect to his intention; or of approving words put to him by another for that purpose. There will, of course, be many such cases. Wordingham v Royal Exchange Trust Co Ltd was itself such a case, in that the judge was able to find that the error lay in not transposing the precise terms of the relevant clause in the testatrix's earlier will. But, for my part, I do not think that the jurisdiction conferred by s 20(1)(a) of the 1982 Act is limited to cases in which 'the intended words of the testator' can be identified with precision.

In my view, the jurisdiction conferred by s 20(1), through para (a), extends to cases where the relevant provision in the will—by reason of which the will is so expressed that it fails to carry out the testator's intentions—has been introduced (or, as in the present case, has not been deleted) in circumstances in which the draftsman has not applied his mind to its significance or effect. It is to this failure to apply thought that Latey J and the editor of Mortimer attach the phrase 'per incuriam'. As Nicholls J pointed out in Re Williams (decd), Wiles v Madgin [1985] 1 All ER 964 at 969, [1985] 1 WLR 905 at 911–912 a testator writing out his own will can make a clerical error just as much as someone else writing out a will for him.

It follows that I am satisfied that the mistake which I have identified—namely, the failure by Mr White through inadvertence to delete the proviso to cl 11(a) from the draft will once he had the list for inclusion in the second schedule—can properly be regarded as a clerical error for the purposes of s 20(1) of the 1982 Act.

40. Mr Barlow Q.C drew to my attention the width of the jurisdiction under section 20(1)(a). He accepted that that there were the two possibilities suggested by Mr Sartin in cross-examination. He submitted that if Miss Martin said 20% and Mr Clarke wrongly recorded "one-twentieth" there was plainly a clerical error on any view of the section. Mr Sartin did not challenge this conclusion.
41. The second possibility is that Miss Martin said "one-twentieth" and Mr Clarke recorded "one-twentieth". As already noted I have decided that this is at least as likely as the first possibility. In that event Mr Barlow Q.C submits it falls within the class of case where "the relevant provision in the will—by reason of which the will is so expressed that it fails to carry out the testator's intentions—has been in circumstances in which the draftsman has not applied his mind to its significance or effect". To put it another way he submitted it was within the second of the categories exemplified in the passage in Mortimer on Probate referred to by Chadwick J.
42. To my mind that submission is correct. In my view paragraph 9 of Mr Sartin's submissions places too narrow a construction on the jurisdiction. Even if the error was Miss Martin's the jurisdiction is open to rectify the will provided Mr Clarke (or Mrs Hall) did not apply their mind to the effect of the will as drafted. It is to my mind inconceivable that if Mr Clarke had applied his mind to the problem he would not have appreciated that 60% of the residuary estate was undisposed of. Thus I am satisfied that he did not. In those circumstances the jurisdiction to rectify the will exists and I propose to rectify it.
43. I am not sorry to reach this conclusion. Mr Sartin's construction would lead to a bizarre construction of the Act. It would mean that if Miss Martin made a mistake in typing the will there could be rectification; if Mr Clarke made a mistake in recording the instructions there could be rectification, but that if Miss Martin made a mistake and that mistake was faithfully typed out by Mr Clarke (without thinking about it) there could be no rectification. It is difficult to see why Parliament should have intended such a consequence.

JOHN BEHRENS Tuesday 16 November 2006