27 January 2022 - Article
In recent years judges have shown much greater willingness to ensure that mistakes in Wills are corrected. The result has been to uphold testators' intentions in the face of ambiguity or even plain error.
But every now and then the wheels come off and the literal approach favoured in the olden days triumphs. A recent example is the decision in Jump and Jones v Lister and Forresters Solicitors Limited.
Mr and Mrs Winston had died at their home in Penrith. It isn't clear who died first. In those circumstances the law decrees that the elder is deemed to have died first (the 'commorientes rule'). Mrs Winston was 88 and Mr Winston 85.
Mr Winston's Will left everything to his wife if she survived him but if she did not he left legacies of £214,500 to individuals and charities, and residue to nieces, Sandra Jump and Suzanne Jones. Mrs Winston, by virtue of the 'commorientes rule', had predeceased. Therefore, the alternative provisions took effect.
Mrs Winston's Will mirrored that of her husband thus, having predeceased, her estate was payable to her husband. However, under 'Technical Clauses' her Will contained the following: 'My estate is to be divided as if any person who dies within 28 days of my death had predeceased me'.
Mr Winston had not survived by 28 days. Mrs Winston's Will included the same alternative provision as Mr Winston, namely £214,500 legacies to individuals and charities, and residue to Sandra Jump and Suzanne Jones.
A literal reading of her Will meant that the £214,500 legacies were paid again (even though they were also payable under Mr Winston's Will).
Suzanne Jones and Sandra Jump thus stood to lose out by £214,500.
In Marley v Rawlings the Supreme Court addressed a situation where husband and wife had each executed the other's Will. The mistake was not spotted on the wife's death but some years later when the husband passed away. The question was whether the Will the husband had executed (that of his wife) could be construed or rectified so that it could be read as his. The Supreme Court unanimously decided that it could.
Other examples include Esson v Esson where the words ‘should I predecease him' as a condition of the gift of a bank account to the testatrix's grandchildren in a codicil were ignored.
In Slattery v Jagger the Court chose to add the words 'to my wife' into a gift of property.
In Royal Society v Robinson the Court construed a reference to 'the United Kingdom' as including the Channel Islands and the Isle of Man despite there being 'no doubt that the technical meaning of 'United Kingdom' does not include the Channel Islands or the Isle of Man'.
These cases all illustrate Judges being flexible in order that the intention prevails rather than drafting errors whether through a process of construction (construing the words to reach the original intention) or rectification (putting mistakes right).
Suzanne Jones and Sandra Jump, as personal representatives, issued proceedings asking the Court to decide if the literal approach should prevail. Rather oddly, given they stood to lose out if the legacies are paid twice, they argued in favour of the literal approach.
It was therefore left to the solicitor who drafted the Will and his firm to argue in favour of an interpretation of the Will that gave effect to Mr and Mrs Winston's intention that the legacies only be paid on the death of one of them and not twice over.
Ironically the Court had to start out by correcting the original Claim Form issued on the neices behalf which had mixed the first and second names of the two claimants.
The barrister for the draftsman argued that the survivorship clause only took effect if the primary gift to Mr Winston had failed (ie the survivorship clause applied to the alternative legacies). Everyone involved accepted that was what Mr (and Mrs) Winston had intended.
The draftsman's evidence was that he had explained the likely tax consequences to Mr and Mrs Winston. That explanation included a premise that the legacies to charity would only be paid once.
His evidence was also that Mr Winston had asked him to confirm that the legacies would only be paid on the second death and that he had confirmed that this was the case.
Despite this evidence, the Judge concluded that the survivorship clause directed 'in clear and unambiguous language' how Mrs Winston's estate was to be divided if any person named in the Will, including her husband, died within 28 days of her own death. The Judge regarded that unambiguous wording as too clear to allow the alternative suggested interpretation (even though it was the interpretation all the parties including the Judge accepted was the original intention).
The case is decided solely as a question of construction.
The Judge expressed surprise that the claim had not been combined with a claim for rectification. A mistake may be corrected if it results from either a clerical error or a misunderstanding of instructions.
He pointed out that an order for rectification might well have taken the form of inserting the words '_(other than my said husband)_' in the survivorship clause.
For rectification to succeed there must be a mistake. Here, it appears the draftsman refused to accept that he had made a mistake (presumably on the instructions of his insurer). Thus, rectification wasn't available.
Should rectification have been run?
We can assume the draftsman's representation was paid for by his insurer.
If rectification had been argued then, even if successful, the insurer risked paying the court costs because it would have conceded that the draftsman made an error.
We can infer that the insurer did a cost/ benefit calculation and decided it was better to gamble that construction would succeed. By arguing that there was no error and the Will could be construed to give effect to Mrs Winston's intention presumably liability for costs might have been avoided.
The upshot is that the legacies are payable twice – which will require compensation from the insurer. The insurer will also have to pay the costs of the hearing. As the Judge concluded, the 'construction issue has been defended, not for the benefit of the estate, but for the benefit of the solicitors. They have lost; and, in my judgment, costs should follow the event'.