Construction and rectification of Wills after Marley v Rawlings  

 In Wills

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Construction and rectification of Wills  |  Marley v RawlingsAsplin J’s decision in Reading v Reading [2015] EWHC 946 (Ch) is one of the first to analyse and apply the Supreme Court’s guidance in Marley v Rawlings [2015] AC 129 in relation to claims for the construction and rectification of wills.

The facts

Mr and Mrs Reading married in March 1980. It was a second marriage for both. Although they had no children together, each had children from a previous marriage: Mr Reading had two children, Stuart and Sally, and Mrs Reading had three, Neill, Thomas and Ruth.

In December 2003 Mr and Mrs Reading met with their solicitor to whom they gave instructions in relation to the preparation of new mirror wills. Each of them wanted to appoint Stuart and Neill (viz. a son and a stepson) as executors together with a partner at the firm. On the death of the first, they wanted to create a nil rate band discretionary trust (“NRBDT”) and leave the residuary estate to the survivor. On the second death, the entire estate would pass to the five children and stepchildren equally.

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In relation to the NRBDT, the solicitor’s attendance note recorded:

Beneficiaries–

each other–

all children:

Mr R – Stuart Reading

Sally Anne Haysham

Mrs R – Neill John Sedgwick

Robin Richard Sedgwick

Ruth Janet Sedgwick

+ children of them.

However, Mr Reading’s will as ultimately executed provided (inter alia):

3.2.3. ‘The Beneficiaries’ means my wife JANET ANTOINETTE READING and any issue of mine who are alive at the start of or born during the Trust Period (emphasis added)

Similarly, the gift over clause provided:

3.5.2. On the expiry of the Trust Period my Legacy Fund Trustees shall hold the Legacy Fund as to both capital and income ON TRUST absolutely for such of my issue as are then living and if more than one in equal shares […] (emphasis added)

Mr and Mrs Reading executed their mirror wills on 30th January 2004. Mr Reading also signed a letter of wishes asking the trustees of the NRBDT to enable Mrs Reading to live “in full comfort for the remainder of her life” and, subject to that, to divide the capital “amongst my children and stepchildren equally”.

Mr Reading died on 6th July 2005. Probate of his will was granted in January 2006. In August 2006 effect was given to the NRBDT by the trustees being granted a charge over Mr Reading’s half share in the matrimonial home and by Mrs Reading covenanting to pay them the shortfall between the nil rate band and the value of Mr Reading’s share (£57,500) index-linked.

Some 5 years later, in late 2011 Mrs Reading considered the possibility of making a distribution out of the NRBDT to her children. The question arose whether Mrs Reading’s children were in fact included in the class of beneficiaries of the NRBDT created by Mr Reading’s will – more specifically in the expression “any issue of mine”.

In March 2014 the trustees issued CPR Part 8 proceedings asking the court to construe the expressions “any issue of mine” and “such of my issue”, in particular to decide whether Mr Reading’s three stepchildren and their children were included within those expression. If the court were to hold that they were not, rectification of the will was sought pursuant to section 20 of the Administration of Justice Act 1982 (“AJA 1982”).

Mr Reading’s two children indicated in correspondence that they intended to dispute the claim but ultimately were not represented and did not attend trial.

The decision

Construction

Following the guidance given by Lord Neuberger in Marley v Rawlings (above), Asplin J approached the construction claim as follows:

I should begin by seeking to identify the meaning of the term “issue” in clause 3.2.3 and 3.5.2 of the will in the light of the natural and ordinary meaning of those words, the overall purpose of the will, the other provisions of the will, common sense and the facts known or assumed by the testator at the time the will was executed.

She held that, when taken in isolation, the ordinary and natural meaning of the word “issue” did not include stepchildren. However, when considered in context by looking at the overall purpose of the will as a whole and the other provisions contained in it, the words “issue of mine” and “such of my issue” did include Mr Reading’s stepchildren and their children, as well as his children. In particular:

  • it seemed odd for Mr Reading’s stepchildren not to be beneficiaries of the NRBDT which had come into effect because Mr Reading had died first, but to be equal beneficiaries of his entire estate (together with his children) had he died second;
  • the evidence indicated that Mr Reading had had a close relationship with his stepchildren;
  • Mr Reading appointed both a child and a step-child as trustees of the NRBDT;
  • Mr Reading’s letter of wishes envisaged an equal division of capital between his children and stepchildren after Mrs Reading’s death, which indicated that he thought his stepchildren were beneficiaries of the NRBDT.

Asplin J reached this conclusion without relying on section 21 AJA 1982, which provides:

21.— Interpretation of wills—general rules as to evidence.

(1) This section applies to a will—

(a) in so far as any part of it is meaningless;

(b) in so far as the language used in any part of it is ambiguous on the face of it;

(c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation.

She went on to consider the section in the alternative, and held that section 21(1)(b) could not be relied on because no ambiguity arose from the use of term “issue” as to whether stepchildren and their descendants were included in class of beneficiaries. However, section 21(1)(c) was engaged because the content of the letter of wishes and the family dynamic showed that “the language used…[was] ambiguous in the light of the surrounding circumstances”. As a result, extrinsic evidence of Mr Reading’s intention was admissible to assist in interpreting the will. In particular, the draftsman’s attendance note clearly showed Mr Reading had intended to include his stepchildren and their children, as well as his children, as beneficiaries of the NRBDT. The will was construed accordingly.

Rectification

As a result of the decision on construction, the rectification claim fell away. However, having heard argument, Asplin J explained her decision on that claim as well.

Section 20 AJA 1982 provides:

20 Rectification.

(1) If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence —

(a) of a clerical error; or

(b) of a failure to understand his instructions,

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

(2) An application for an order under this section shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out.

Asplin J adopted the 3-stage approach identified in Re Segelman [1996] Ch 171, viz.:

section 20(1)(a) requires the court to examine three questions, namely: what the testator’s intentions were in relation to the provisions which it is sought to rectify; whether the will is expressed in a way which fails to carry out those intentions; and whether the will is expressed in the way it is as a result of (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.

On the facts, Asplin J held that Mr Reading had intended to include as beneficiaries of the NRBDT his stepchildren and their children, as well as his children. She also held that, had she decided as a matter of construction that Mr Reading’s stepchildren and their children were not included in the NRBDT, she would have held that the will was expressed in a way which failed to carry out Mr Reading’s intentions.

However, she concluded that the will was not expressed in the way it was as a result of a clerical error.

She cited the following guidance in relation to clerical error provided by Lord Neuberger in Marley v Rawlings (above):

  1. I accept that the expression ‘clerical error’ can have a narrow meaning, which would be limited to mistakes involved in copying or writing out a document, and would not include a mistake of the type that occurred in this case. However, the expression is not one with a precise or well-established, let alone a technical, meaning. The expression also can carry a wider meaning, namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of, a document (save, possibly, to the extent that the activity involves some special expertise). Those are activities which are properly be described as ‘clerical’, and a mistake in connection with those activities, such as wrongly filing a document or putting the wrong document in an envelope, can properly be called “a clerical error”.
  2. For present purposes, of course, ‘clerical error’ is an expression which has to be interpreted in its context, and, in particular on the assumption that section 20 is intended to represent a rational and coherent basis for rectifying wills. While I appreciate that there is an argument for saying that it does nothing to discourage carelessness, it seems to me that the expression ‘clerical error’ in section 20(1)(a) should be given a wide, rather than a narrow, meaning.

Asplin J concluded:

[51]…Despite the fact that in Marley v Rawlings Lord Neuberger states that “clerical error” should be given a wide rather than narrow meaning, I would have found that the error here was not one arising out of office work of a relatively routine nature such as preparing, filing, sending and organising the execution of a document […] [Lord Neuberger] expressly added at the end of his list “save possibly to the extent that the activity involves some especial expertise”. It seems to me that although [the draftsman] says that he used a precedent when drafting the will he now realises that the use of “issue” was unfortunate and he simply overlooked the fact that “issue” would not include stepchildren, this does not fall within the ambit of “clerical error”. It seems to me that it is not within Lord Neuberger’s clerical activities, and even if it could fall within the term “preparation of a will” it is an activity which falls within Lord Neuberger’s caveat in relation to activities involving special expertise. The inclusion of the term was part of the activity of drafting the will rather than its mere preparation.

[52] Lastly, is it a term which was introduced because the draftsman did not apply his mind to its significance or effect? Both [counsel for the claimants] and [the draftsman] say “yes”. However, in my judgment, despite the fact that [the draftsman] says that he now appreciates that “issue” was not an appropriate term to use, there is no question here of clerical error. He did not leave the term in by mistake or fail to delete it when he ought to have done. Instead, in carrying out his professional duty and judgment as a draftsman of the will, he failed to use an apposite term. It seems to me that this is a matter of specialist skill and expertise and does not fall within clerical error […]

[53] […] It is not a case in which [the draftsman] inadvertently failed to delete something from the draft of the will or, put it another way, left something in which he ought to have taken out. The relevant activity here was not clerical. It related to his professional judgment and expertise in the choice of the necessary phrases to encapsulate the instructions given. In my judgment this is no less the case because [the draftsman] was working from a precedent.

Practical implications

As regards construction, the case illustrates that the court’s modern approach to construction of wills is a flexible one and that the court may depart from the first-blush natural and ordinary meaning of a word or phrase and adopt a broader meaning if the circumstances justify it. The admissibility of extrinsic evidence to assist the court in construing the will (pursuant to section 21 AJA 1982) may also be of help in, in effect, correcting a drafting error by construction.

However, it is suggested that the flip-side of this approach is that each decision will depend on the particular facts of the case in question and that decided cases are therefore likely to have limited precedential value in a subsequent case in which the court is asked to construe the same, or a similar, word or phrase.

As regards rectification, the decision is significant in establishing that, even when given a broad meaning (as required by Marley v Rawlings), the concept of ‘clerical error’ has limits and does not include an advertent error made by a draftsman who correctly understood the testator’s intentions and consciously chose a particular word or phrase to give effect to them, but made a choice which was inapposite. In these circumstances the error is neither a clerical error nor the result of a failure to understand the testator’s instructions, and rectification will therefore not be available.

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