Does ‘one part’ of residue mean the same as ‘one tenth’?
Will construction & rectification – Re Harte  EWHC 2351
This case looks at how a court will interpret a Will which, in the words of the judge, is “poorly drafted”. The gift of residue contained a mixture of definitions of the share each beneficiary was to receive and failed to correctly identify some of the charity beneficiaries. Fortunately ‘one part’ and ‘one tenth’ in this case were interpreted as having the same meaning. Rectification was needed and was possible in the case of one of the charity beneficiaries as there was no charity matching the name given in the Will. This is yet another case where the court has approved Lord Neuberger’s wide view of Will interpretation from Marley v Rawlings and his view that ‘clerical error’ is to be given a wide meaning.
Florence Harte died on 26 October 2013 leaving a professionally drawn Will dated 10 November 2009 and an estate worth in the region of £663,000. Under the terms of her Will, as her husband had predeceased her, she appointed Patrick Stewart and Michael Davis, two partners in the firm of Newbury solicitors who had drawn up the Will, as her executors.
Patrick and Michael applied to court over the construction of what Hodge J QC called the ‘poorly drafted’ Will and alternatively rectification of certain provisions.
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The principal provisions in question concerned the gift of residue in the event of her husband predeceasing her. The residue was left to her trustees to be held in a mixture of one tenth to each of six named individuals and charities, but also as to one part (without having first divided it into ten parts) to each of four named individuals. Each charity or individual was listed in consecutive sub-clauses 4.1, 4.2 etc one under the other.
As well as asking for an order that ‘one part’ of the residuary estate was equal to ‘one tenth’ of it, the executors also sought an order on the precise charity beneficiary in two cases of vague description without a registered charity number.
The file from when Florence and her late husband had given instructions for their mirror Wills in 2009 was produced, but did not contain much extrinsic evidence to assist the court. The instructions from the Hartes were limited and the 2009 Wills resulted from amendments to earlier Wills, copies of which were not available. Neither Patrick who had drawn up the Wills, nor the one attesting witness who could be traced could recall the Hartes or them making the Wills. The file did contain the note Patrick made at the time he took instructions for the 2009 Wills.
Construction and interpretation
S21 of the Administration of Justice Act 1982 (AJA) provides:
“Interpretation of wills – general rules as to evidence
- 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.”
Hodge J referred to the Supreme Court in Marley v Rawlings  UKSC 2 and Neuberger L when he held that Wills should be interpreted in the same way as any other document with the addition of reference to extrinsic evidence of the testator’s actual intention such as details of what he told the Will drafter or notes he made.
s.20 AJA applies to deaths on or after 1st January 1983 and provides:
“20 (1) If a court is satisfied that a Will is so expressed that it fails to carry out the testator’s intentions, in consequence –
- of a clerical error; or
- of a failure to understand his instructions,
it may order that the will shall be rectified so as to carry out his intentions.”
Hodge J again referred to Neuberger L in Marley v Rawlings when he looked extensively at what a clerical error would include. In Marley v Rawlings Neuberger L had held that as well as having a narrow meaning, so being limited to only mistakes in writing out or copying a document, it could also (in Hodge’s words) “carry a wider meaning, namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, or organising the execution of a document (save possibly to the extent that the activity involved some special expertise).” Neuberger had gone on to hold that a wide meaning should be given to the words ‘clerical error’.
Hodge J held that ‘one part’ of the residuary estate should be interpreted as meaning ‘one tenth part’ of it, so being the same as ‘one tenth’ of it as:
- There was nothing to indicate that the meaning of ‘part’ should be anything other than ‘tenth’;
- There were a total of ten gifts of ‘one part’ and ‘one tenth’ which disposed of the entire residuary estate if they were interpreted as having the same meaning; and
- Each gift of either ‘one part’ or ‘one tenth’ was in numbered sub-clauses running from 4.1 to 4.10.
Hodge J went on to make findings about the correct charities in the case of the two uncertain charity beneficiaries. One of these involved rectifying the Will as there was no such charity as the ‘West Berkshire Ambulance Hospital’ as stated. Despite the “paucity of evidence” Hodge J was satisfied that the Will failed to carry out Florence’s instructions in relation to that gift and that he could identify what those instructions had been. This was either a clerical error or an error of the draftsman to understand the instructions given. “She clearly intended to benefit an air rescue or air ambulance service operating in, and serving, the West Berks area.” As the body that filled that description was the Thames Valley and Chiltern Air Ambulance Trust, reference should be made to this charity in the appropriate clause of Florence’s Will by way of substitution for the original words.
- As Wills now continue to be interpreted more widely so in the same way as other documents, but with the addition of looking at the intentions of the testator, make sure you record the testator’s intentions fully after probing them about their thinking behind their instructions.
- Keep full attendance notes and any papers the client may give you with their instructions written on them, e.g. an annotated copy of their current Will, as this will assist the court in looking at the testator’s intention.
- When using precedents, go back to the original precedent and don’t start from another file where you have adapted the precedent for another client.
- Always look over your drafting to check you use the same definitions throughout a clause and all clauses cross refer correctly. It can be useful to ask a colleague to look over it as a fresh pair of eyes can often spot mistakes more easily.
- Remember to always ask the client to let you have the full address and registered charity number for any charity beneficiary and then double check they are correct. Raise any uncertainties with the testator and include full details of the charity in the Will.
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