Rectification – Austin v Woodward [2011] EWHC 2458

 In Wills

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This was a claim for rectification brought out of time by the deceased’s daughter, Caroline. The executors were willing to admit the claim and the residuary legatees who would otherwise inherit had written to the court confirming they would not oppose it. The court however, had to consider whether the grounds for relief had been met.

The facts

The deceased, Joyce Austin, died on 17 February 2009 made the disputed Will on 6 October 2003. It was prepared by Mr Woodward of Lee Crowder. He confirmed that he was given no instructions to change the relevant provisions of the deceased’s earlier Will made in 1993 as regards the disputed gift of the deceased’s family home. In the 1993 Will the family home passed to Caroline absolutely; whereas under the 2003 Will it passed into residue and was held for Caroline for life with remainder to the deceased’s two grandchildren.

This lack of positive evidence to show that the deceased had changed her intentions as regards the family home gift was supported by others in Lee Crowder and also by Caroline who had not been able to find any evidence that her mother had changed her intentions.

Caroline gave evidence to the effect that the clause in the Will provided that ‘the beneficiary’ had to survive for 30 days for the gift of the house to apply. In the testator’s Will ‘the beneficiary’ was the claimant’s father, the testator’s husband, and he did not survive the testator so the gift of the house failed and fell into residue. In the earlier Will the clause had given Mr Austin a life interest and then on his death an absolute interest to Caroline. There was in fact positive evidence that the testator wanted the house to be dealt with in the same way as the earlier Will – the letter confirming instructions from Lee Crowder to the Austins dated 1 October 2003 and a manuscript note from Mr Austin dated 16 October 2003 and other annotations on difference pieces of correspondence.

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What the judge decided was that there was no intention on the part of the testator to change her gift of the house in the later Will so as to be different to the earlier Will. He believed a newer set of precedents was used in preparing the later Will without giving thought to the impact it would have on the testator’s wishes. The old and new precedents were considered and it was apparent the later Will simply used the newer precedents.

The decision

The question was therefore whether the remedy of rectification was appropriate to correct this mistake. He considered the case law and concluded that this was a case which was clearly a clerical error because 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.

The Judge believed it was appropriate to extend the time allowed for making a rectification application even though it was substantially out of time because:

  1. Caroline only discovered the evidence to refute the change in the later Will in November 2009 and did not believe in March 2009 when the later Will was explained to her that there was anything which could be done to correct it.
  1. There were delays in arranging representation including changing solicitors, because of the potential for conflict.

The delays were said not to be of Caroline’s making and that in the circumstances the claim had been promulgated reasonably speedily. If leave to consider rectification out of time were refused Caroline would be significantly prejudiced.

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