Say what you mean, but make sure you do so correctly. Good advice for any will draftsman, especially when it comes to legal terms that may have different meanings for lay persons and for lawyers.
The recent decision in Reading v Reading is an example of the perils of using a word which has a precise legal definition when intending it to have a wider meaning. John Reading died in July 2005, leaving two children, three stepchildren and various (step) grandchildren.
His Will included a discretionary trust of 'the largest sum of cash which could be given on trust… without any Inheritance Tax'. Beneficiaries were to be 'such of my issue' and 'issue of mine'.
The legal definition of 'issue', linear descendants, does not extend to stepchildren.
Mr Reading's widow (his second wife), his solicitor, one of his children and one of his stepchildren were trustees. His widow and solicitor applied to the court for a direction as to the meaning of 'issue' in the context of Mr Reading's estate. They contended that the term should include not only Mr Reading's children, but also his stepchildren. The children disagreed.
As an alternative to the construction application, the claimants sought to rectify the Will on the basis that, as expressed, it failed to carry out Mr Reading's intentions because of a clerical error by the draftsman.
The solicitor who drafted the Will admitted that he had used a precedent without appreciating that 'issue' did not include stepchildren.
The Judge accepted that the family dynamics and the wording of the Will meant that the 'ordinary and natural meaning' of the words 'such of my issue' and 'issue of mine' included both children and stepchildren.
The Judge did not have to consider whether the draftsman had made a clerical error, but did so in any event.
In the recent case of Marley v Rawlings, the Supreme Court stated that 'clerical error' should be given a wide interpretation rather than a narrow meaning. In that case, the fact that husband and wife had accidently executed each other's Will was regarded as a clerical error and capable of rectification.
Here, however, the Judge decided that the solicitor's failure to appreciate that 'issue' was not an appropriate term to use was not a clerical error. The solicitor did not leave the term in by mistake or fail to delete it when he should have done; instead, in carrying out his professional duty, he had failed to use the appropriate term. The Judge described this as a matter of specialist skill and expertise, which therefore did not fall within the definition of 'clerical error'.
The decision on rectification is academic because the Judge arrived at the same result by way of construction. The strict application of the rule that an error of law may not be rectified does, however, echo the recent case of Kell v Jones. There the solicitor draftsman used the word 'survived' intending it to apply to 'mortal beneficiaries' but not to charities included in the will. The Judge refused to rectify the Will as the solicitor had made a mistake of law rather than a clerical error. The testator's intention was therefore defeated leaving those penalised by the error to the lottery of a professional negligence claim.