Will rectification and construction

Rectification and construction

Sometimes a Will is drafted up by a lawyer that does not properly carry out the testator’s intentions. This could be either because of an administrative error or because the person drawing up the Will does not understand the testator’s instructions.

A claim for rectification or a claim regarding the construction of the Will can be made. If it is not successful, a claim for professional negligence against the lawyer may be appropriate.

As an example, George visits a lawyer and requests that his estate is split evenly between Anna, Heather and Sarah. He also leaves Susie (his dog) to his favourite Niece. George’s lawyer draws up a Will that says George’s estate will be split between Anna, Heather and Susie, leaving ‘Sarah’ to his favourite niece. George does not spot that the names have been mixed up when signing the Will.

Another example would be if George instructed his lawyer to split his estate between his three children, but only two are named in the final copy of the Will. If the lawyer’s notes are clear, this error would potentially be correctable.

Note that there is a 6 month time limit for rectification claims (from the Grant of Probate).

Rectification – Marley v Rawlings [2014]

In Marley v Rawlings [2014] Mr and Mrs Rawlings went to a solicitor who prepared Wills for each of them. The Wills left their estate to each other with a gift over to Terry Marley. When they came to  sign, the solicitor handed the wrong Will to each – but nobody noticed. So Mr Rawlings signed Mrs Rawlings’ Will and vice versa.

When Mrs Rawlings died, her entire estate passed by survivorship to her husband and her Will was not proved. If the Will was invalid, it would mean that Mr Rawlings was intestate (meaning, he had no valid Will) and the estate would pass to his two sons, rather than to Mr Marley.

Initially the Court of Appeal held that the Will was invalid as it failed to meet the requirements set out in Section 9 of the Wills Act. Therefore, the Will could not be rectified under Section 20 of the Administration of Justice Act 1982 because this can only be used where there is a valid Will.

However, considering the case again in the Supreme Court, Lord Neuberger looked at both Section 9(a) and Section 9(b) of the Wills Act 1837 and concluded that both of these sections had been complied with.

The Court then considered whether there had been a ‘clerical error’ which would allow them to replace the text of the Will signed by Mr Rawlings with the text of the Will signed by Mrs Rawlings.

Lord Neuberger stated that the term ‘clerical error’ did not have precise meaning – therefore, mistakes that arose out of office work such as preparing, filing, sending and organising the execution of a document would all be clerical activities. In his judgement Lord Neuberger notes that the clerical error might be made by a solicitor, a clerk ‘or indeed the testator himself’.

Of note, since the solicitor’s negligence caused the litigation, the solicitor’s insurers were ordered to pay the legal costs in bringing the case.

Rectification – Slattery v Jagger [2015]

In Slattery v Jagger [2015] the Deceased’s Will included a clause identifying the Deceased’s property but failed to specify who it should go to. The claimants sought either the construction of the will to give effect to the testator’s intention (which was to leave the property to his wife), or, alternatively, rectification of the will in acknowledgement that the words ‘to my wife’ had been omitted because of a clerical error. The Court read the words ‘to my wife’ into the devise of a property from which they had accidentally been omitted by a process of construction.

Construction – Reading v Reading [2015]

In Reading v Reading [2015], the Deceased had two children from his first marriage and three step children (from his wife’s first marriage). Whilst the Deceased had little contact with his own children, he had a significant amount of contact with his step children.

The terms of the Deceased’s Will which was prepared by a solicitor left an amount equal to his unused nil rate band to a discretionary trust. The class of beneficiaries of the trust were stated to be his wife and “any issue of mine who are alive at the start of or born during the trust Period”.

The residue of the Deceased’s estate was then left to his wife if she survived him for 28 days – and if she did not, to his named two children and three stepchildren (identified by name), in equal shares.

With the Will, the Deceased included a Letter of Wishes requesting that his trustees ensure his wife was comfortable during her lifetime, and then for the trustees to divide the capital amongst the Deceased’s children and stepchildren equally.

The solicitor’s attendance note set out the children and stepchildren by name as the beneficiaries of the nil rate band trust.

However, as noted, rather than naming the beneficiaries specifically, the Will used the word ‘Issue’ in relation to the discretionary trust. The ordinary and natural meaning of the word ‘Issue’ does not include stepchildren.

Rather than interpreting the Will literally, the Court considered the word ‘Issue’ in the context of the Will as a whole. This included that:

  • If the Wife had predeceased her husband, his Estate would have been divided between his children and stepchildren (according to the later clause which identified them by name). It would seem strange that he would have intended the stepchildren to get nothing if the Nil Rate Band Discretionary Trust came into effect.
  • The Will appointed both the Deceased’s son and stepson as Executors, and as trustees of the Nil Rate Band Discretionary Trust.
  • The Deceased was close to his stepchildren and had a lot of contact with them.
  • The Letter of Wishes also set out what the Deceased intended.

Taking all these facts into consideration, the Court held that the use of the word ‘Issue’ in the Will included both children, stepchildren and their children.

Note that this case does not alter the usual meaning of the word ‘Issue’ in other cases. The key point here is that in this particular case, it was clear what the Deceased’s true intention was when making the Will.