The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof required in a claim for rectification made under section 20(1) of the 1982 Act is that the Court should be satisfied on the balance of probabilities, the probability that a will which a testator has executed in circumstances of some formality represents his intentions is usually of such weight that convincing evidence to the contrary is necessary.’ The section required three questions to be examined: first, what were the testator’s intentions with regard to dispositions in respect of which rectification is sought; second, is the will expressed so that it fails to carry out those intentions; and, third, is the will expressed as it is in consequence of either a clerical error or a failure on the part of someone to whom the testator has given instructions in connection with his will, to understand those instructions.
The jurisdiction conferred by section 20 of the 1982 Act in England was limited to cases in which ‘the intended words of the testator’ can be identified with precision: ‘In my view the jurisdiction conferred by section 20(1), through paragraph (a) extends to cases where the relevant provision in the will, by reason of which the will is so expressed that it fails to carry out the testator’s intentions, has been introduced (or as in the present case has not been deleted) in circumstances in which the draftsman has not applied his mind to its significance or effect.’
Chadwick J: ‘The third question in relation to the claim for rectification is whether the failure of cl 11(a) to carry out the testator’s intention is in consequence of a clerical error or a failure to understand his instructions, or has come about for some other reason. I am satisfied that the reason why cl 11(a) with its proviso did not carry out the testator’s intention was that Mr White failed to appreciate on 5 May 1992 that the proviso which he had included in the draft will on his own initiative had become inapt once he had been instructed that the second schedule was to take the form which it did. Once he had a list for inclusion as the second schedule which included the issue of five of the six named beneficiaries Mr White ought to have deleted the proviso to cl 11(a) from the draft will. Failure to do so was a mistake. That mistake did not arise from any failure by Mr White to understand his instructions. Mr White told me that he simply forgot that the proviso was there. The question is whether that mistake can properly be regarded as a clerical error for the purposes of s 20(1).’ and
The distinction between (i) the introduction of words into a will per incuriam without advertence to their significance and effect (described in that passage as ‘a mere clerical error’), (ii) the introduction of words to which the draftsman has applied his mind but in relation to which he has failed to understand his instructions and (iii) the introduction of words to which the draftsman has applied his mind with a proper understanding of his instructions but which (perhaps through failure properly to understand the law) do not achieve the objective which he and the testator intended, was preserved when the law relating to the rectification of wills was altered by s 20(1) of the 1982 Act. The distinction had been recognised by the Law Reform Committee in their nineteenth report. . . Interpretation of Wills; a report which led to, but which was not wholly carried into effect by, the 1982 Act. The alteration of the law made by that Act gives power to the court to order rectification-as distinct from the former power merely to order the omission of words from probate-and extends that power to cases of failure to understand instructions, in addition to mistakes in consequence of clerical error; but there is no reason to think that that which the editor of Mortimer would have recognised as a clerical error in 1927 was not intended to be picked up by of s 20(1)(a)of the 1982 Act.
The mistake with which he was concerned lay in a failure to include in a new will made in 1989 a clause exercising a testamentary power of appointment in favour of her husband which had been conferred on the testatrix under the will of her father. The relevant clause exercising that testamentary power had been included in two earlier wills. The judge was satisfied that the testatrix intended that her 1989 will should include a provision precisely in the terms of the relevant clause in her immediately preceding will. He concluded: ‘It follows that in my judgment [the solicitor’s] error in failing to include in his draft new will a paragraph following the provisions of cl 4 of the 1979 will was an error made in the process of recording the intended words of the testatrix and, in my judgment, constituted a clerical error within s 20(1)(a) [of the 1982 Act].’
In reaching that conclusion the judge had considered the passage in Mortimer to which I have already referred and the judgment of Latey J in Re Morris (decd). He had also considered the Australian case of R v Comr of Patents, ex p Martin (1953) 89 CLR 381 and the nineteenth century English case of Re Sharp’s Patent, ex p Wordsworth (1840) 3 Beav 245, 49 ER 96. It was, I think, observations in those patent cases which led him to the view that: ‘the words ‘clerical error’ used in section 20(1)(a) of the 1982 Act are to be construed as meaning an error made in the process of recording the intended words of the testator in the drafting or transcription of his will.’
If taken out of context there is some danger, perhaps, that the judge’s reference to ‘the intended words of the testator’ might be thought to require a finding that the testator had actually reached the point of putting into words the relevant provision which was to give effect to his intention; or of approving words put to him by another for that purpose. There will, of course, be many such cases. Wordingham v Royal Exchange Trust Co Ltd was itself such a case, in that the judge was able to find that the error lay in not transposing the precise terms of the relevant clause in the testatrix’s earlier will. But, for my part, I do not think that the jurisdiction conferred by s 20(1)(a) of the 1982 Act is limited to cases in which ‘the intended words of the testator’ can be identified with precision.
In my view, the jurisdiction conferred by s 20(1), through para (a), extends to cases where the relevant provision in the will-by reason of which the will is so expressed that it fails to carry out the testator’s intentions-has been introduced (or, as in the present case, has not been deleted) in circumstances in which the draftsman has not applied his mind to its significance or effect. It is to this failure to apply thought that Latey J and the editor of Mortimer attach the phrase ‘per incuriam’. As Nicholls J pointed out in Re Williams (decd), Wiles v Madgin [1985] 1 All ER 964 at 969, [1985] 1 WLR 905 at 911-912 a testator writing out his own will can make a clerical error just as much as someone else writing out a will for him.
It follows that I am satisfied that the mistake which I have identified-namely, the failure by Mr White through inadvertence to delete the proviso to cl 11(a) from the draft will once he had the list for inclusion in the second schedule-can properly be regarded as a clerical error for the purposes of s 20(1) of the 1982 Act.
Chadwick J
[1996] Ch 171, [1996] 2 WLR 173, [1995] 3 All ER 676
Administration of Justice Act 1982 20
England and Wales
Citing:
Applied – Re Williams Deceased, Wiles v Madgin ChD 1985
A testator writing out his own will can make a clerical error just as much as someone else writing out a will for him. ‘In passing, I note that there is no claim for rectification in the present case. It was suggested in the course of argument that . .
Cited – In re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
Cited – Wordingham v Royal Exchange Trust Co Ltd and Another ChD 6-May-1992
A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical . .
Cited – In re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
Cited – Simpkins v Pays 1955
The court found an intention to create legal relations and therefore an enforceable contract among the members of a family to share the winnings in a newspaper competition which the family regularly entered.
Sellers J said: ‘It may well be . .
Cited by:
Cited – Walker v Geo H Medlicott and Son (a Firm) CA 19-Nov-1998
The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will . .
Cited – Powell v Haywards (a Firm) CA 18-Feb-1999
Solicitors appealed against an order for payment of damages for professional negligence. The solicitors said that the plaintiff should have mitigated her damages.
Held: The plaintiffs had not failed to take reasonable steps to mitigate their . .
Cited – Goodman v Goodman, Clegg, Manuel ChD 14-Jul-2006
The claimant sought rectification of the will to alter a clause leaving a monthly sum to the first defendant. She said it did not reflect the deceased’s wishes. It was accepted that ‘ the burden of proof rests on her to establish a case that Guy’s . .
Cited – Clarke v Brothwood and others; In re Clarke ChD 16-Nov-2006
The claimant sought rectification of a will. The respondents argued that any mistake was not a clerical one so as to bring it within section 20. The gift of residue had left sixty per cent undisposed of. It was said that the will had referred to . .
Cited – Sprackling and others v Sprackling and Another ChD 6-Nov-2008
Family members argued that the will did not reflect the wishes of the deceased. The deceased had owned substantial and varied farming businesses, and had made a new will leaving the farm to his seciond wife, and not the sons by his first marriage. . .
Cited – Marley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
Cited – Bimson, Re The Estate of ChD 26-Jul-2010
Application to rectify the will under the 1982 Act.
Held: The application succeeded. Henderson J said: ‘this case falls comfortably within the scope of clerical error within the meaning of section 20(1)(a). It appears to me plain that David . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.241679
