Health and Safety - personal liability for directors operating in the built environment
One of the questions we are often asked is whether an individual’s will can be amended after their death if it doesn’t reflect their intentions. This is sometimes possible under a process known as rectification, although the circumstances in which rectification is available are limited. A claim for rectification was recently considered by the court at the end of 2020 in the case of Barrett v Hammond & others.
The proceedings in the case concerned the estate of Dr Robert Munroe Black, who died in February 2018. He had made a will dated 29 September 1998 and codicils in August 2005 and March 2016. Dr Black and his wife had made mirror wills at the same time, but she had died before him in 2013.
Elizabeth Barrett, the executor of Dr Black’s estate, was in doubt as to the effect of Dr Black’s will and first codicil, both of which had been prepared by solicitors. The uncertainty arose because in his will Dr Black had directed his executors to divide his residuary estate into 52 equal parts. Under the terms of the will, six individuals received six parts each, and eight charities received two parts each (totalling 52 parts). The first codicil removed the gifts to two of the individuals (twelve parts) and added gifts to two charities which were to receive two parts each (four parts in total). Therefore Dr Black’s codicil revoked the gift of twelve parts, but only granted additional gifts of four. It therefore appeared that there was no provision for the distribution of the eight remaining parts.
Ms Barrett issued a claim seeking a determination as to the true construction of the will and codicils. In July 2019 the court determined that under a true construction of the will and two codicils, a partial intestacy arose in respect of the eight parts for which no provision had been made. Ms Barrett was then ordered to proceed with a claim for rectification of Dr Black’s will. There were 31 defendants to the claim, being those parties who had an interest in the estate under the will and codicil and those who would have an interest in the partial intestacy. Only one of the defendants opposed the rectification claim, although that defendant withdrew her evidence shortly before the final hearing and took no further part in proceedings.
A claim for rectification of a will is made under section 20 of the Administration of Justice Act 1982 (“the AJA”). Under section 20, the court may order rectification of a will in only two situations. The court must be satisfied that a will fails to carry out the testator’s intentions due to either (1) a clerical error or (2) failure to understand the testator’s instructions.
The judge in this case confirmed that the court has an “obligation to see that, so far as possible, the intentions of the testator are honoured”. In considering the claim for rectification, the first question to ask was what was Dr Black’s intention with regard to the dispositions in his will and whether the will failed to carry them out. Documentary evidence in this case showed that Dr Black and his wife had a will making history whereby they divided their residuary estate into multiple parts in order to make small pecuniary legacies to a large number of relatives. Various typed documents and handwritten notes, made either by Dr Black or his wife, showed them considering revisions to their wills and amending the recipients of the various pecuniary legacies.
The judge found that the handwritten notes and documents evidenced a very clear indication that Dr Black and his wife intended that the number of parts which were to be available would match the number of gifts that were made and there would be no balance to fall into a partial intestacy. The documents taken together were good evidence that Mr Black had intended that there would not be anything left over to fall into a partial intestacy.
Dr Black’s first codicil created an inconsistency with the will, in that it deleted twelve parts, but made new gifts of only four parts, leaving eight parts unaccounted for. The court had previously ruled that the a partial intestacy did arise in respect of these eight parts. The judge here concluded that Dr Black had gone to the trouble of making a highly detailed will which appeared on the face of it to have disposed of the whole of his estate, and that on balance it was more likely than not that he intended to dispose of his whole estate. The fact that the will and codicil did not give effect to this intention led the judge to ask (i) why did it fail and (ii) is there power to put it right, to avoid the partial intestacy?
The case before the court was put on the basis that there had been a clerical error, which the judge agreed with. The meaning of ‘clerical error’ was considered in the 2014 case Marley v Rawlings. In that case, the judge ruled that ‘clerical error’ was an expression which could carry a wider meaning, namely a mistake arising out of office work or a routine nature, rather than being narrowly limited to mistakes in copying or writing out a document.
The judge in Dr Black’s case agreed that ‘clerical error’ should be given a wide rather than a narrow meaning. He said that the solicitor instructed by Dr Black and his wife, when preparing the first codicil, had not appreciated when looking at the will as a whole that there was a mismatch between the change in gifts and the splitting of the residuary estate into 52 parts. The judge found that the solicitor could not have made a close examination of the 1998 will, by which he meant that the solicitor did not read through the will in its entirety.
The judge ruled that, in this case, what the solicitor needed to do was to appreciate that unless something was done about the number of parts into which the residuary estate had been split, there was going to be a partial intestacy. The fact the solicitor did not apply his mind to it was evidenced from the cover letter which he sent with the draft codicils, which made no reference to the mismatch.
The judge concluded that the reconciliation of the figures did not require any particular legal expertise and did not point to a misunderstanding as to the instructions. It was “just a clerical oversight, a failure to balance the figures”. As a result, the court had the power to rectify the will (which included the first codicil) under s.20 of the AJA, and should rectify in this case in order to give effect to Dr Black’s intentions. The judge therefore ordered that the codicil be amended such that the estate be divided into 44 parts (not 52). The net estate was valued at approximately £937,000, and the value of the eight parts which would have potentially fallen into intestacy was around £144,000. The judge also ordered that the claimant’s costs be paid from the estate as an expense of the administration.
In cases where a will has been prepared by a solicitor or other will writing professional and there are grounds for a subsequent claim for rectification, a professional negligence claim may also arise. Where rectification is ordered and the costs of that process are to be paid from the estate, the residuary beneficiaries might seek to bring a professional negligence claim against the solicitors involved in the preparation of the will on the basis that proceedings to determine the construction of the will and for subsequent rectification would not have been necessary but for the solicitor’s clerical error. If the legal costs of the rectification claim are substantial and are to be paid from the estate, this would have the effect of reducing the amount the residuary beneficiaries would receive, and so their claim against the solicitor would be equivalent to the legal costs to be paid from the estate (which could be substantial).
In other instances, the case for rectification may not be met but disadvantaged beneficiaries may still have a claim against the solicitor or will writing professional. They would need to show the professional had been negligent in not ensuring that the will making process was carried out competently, so as to ensure that the testator’s intentions were understood and carried out
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