1. Jacqueline Anne Rainbird and Another v 1. Gwendoline Smith and Others
| Jurisdiction | England & Wales |
| Judge | The Judge |
| Judgment Date | 25 May 2012 |
| Neutral Citation | [2012] EWHC 4276 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC11C03213 |
| Date | 25 May 2012 |
[2012] EWHC 4276 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr John Baldwin QC
(Sitting as a Deputy Judge of the Chancery Division)
Case No: HC11C03213
Ms Charlotte Edge (instructed by Messrs Dyne Drewett) appeared on behalf of the Claimants
No representation or attendance on behalf of the Defendants
(As Approved)
Digital Transcript of Wordwave International, a Merrill Communications Company 101 Finsbury Pavement London EC2A 1ER Tel: 020 7421 4046 Fax: 020 7422 6134 Web: Email: (Official Shorthand Writers to the Court)
The Claimants are the Trustees of the Will of Doreen Gertrude Leader, who died in 2010, and bring this action seeking rectification of the Will pursuant to the provisions of section 20 of the Administration of Justice Act 1982, on the grounds that it fails to carry out the deceased's intentions in consequence of a clerical error.
The Testatrix had three daughters, the first claimant, the first defendant and Janet Jones. Janet predeceased the Testatrix leaving two children, the second and third defendants.
The defendants do not appear and are not represented but I have seen signed consent orders from them which accept that the Claimants' contentions in this action are correct.
Although the claim is for rectification, as matters progressed it became clear that before rectification can be considered, the Will must first be construed in order to ascertain its meaning in its current form. Before me this morning Ms Edge, for the claimants, started her address with submissions as to what the will properly construed means.
The relevant clause of the Will is in these terms:
"I give my estate (including any property over which I may have general power of appointment or disposition by Will) to my Trustees Upon Trust…
(c) subject thereto hold the residue remaining and the income thereof ("my Residuary Estate") UPON TRUST for such of them my Daughters, the said JACQUELINE ANNE RAINBIRD JANET JONES of Windrush Cottage 2 Newland Witney Oxford OX28 3JD and GWENDOLINE SMITH of Calle Penyes Roges, 6 Urb El Capso Orba 03790 Alicante Spain as shall survive me and if more than one in equal shares absolutely."
It is clear from elsewhere in the Will that the reference to Jacqueline Anne Rainbird Janet Jones is a reference to two people, Jaqueline Anne Rainbird and Janet Jones.
The matter has arisen because Janet pre-deceased the testatrix and the question is whether or not section 33 of the Wills Act 1837 is in play and operates such that the bequest to the pre-deceased daughter passes to her children or not. Section 33 provides that such would happen in the normal case unless a contrary intention appears by the Will 1. It was in these terms at the date of the Testatrix's death:
(1) Where—
(a) a will contains a devise or bequest to a child or remoter descendant of the testator; and
(b) the intended beneficiary dies before the testator, leaving issue; and
(c) issue of the intended beneficiary are living at the testator's death,
then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator's death.
(2) Where—
(a) a will contains a devise or bequest to a class of persons consisting of children or remoter descendants of the testator; and
(b) a member of the class dies before the testator, leaving issue; and
(c) issue of that member are living at the testator's death,
then, unless a contrary intention appears by the will, the devise or bequest shall take effect as if the class included the issue of its deceased member living at the testator's death.
(3) Issue shall take under this section through all degrees, according to their stock, in equal shares if more than one, any gift or share which their parent would have taken and so that no issue shall take whose parent is living at the testator's death and so capable of taking.
(4) For the purposes of this section—
(a) the illegitimacy of any person is to be disregarded; and
(b) a person conceived before the testator's death and born living thereafter is to be taken to have been living at the testator's death.
As I have indicated, the matter came before me as an application for rectification of the Will. However, it seems to me that I must approach construction first and I am reminded that the correct approach is no different from that of any other document; it is in accordance with the principles set out in Mannai Investment Company v Eagle Star [1997] AC 749 and Investors Compensation Scheme v the West Bromwich Building Society [1998] 1 All ER 98. I have to ascertain the meaning which the will would convey to a reasonable person having regard to all the background knowledge which was available at the time the Will was made.
When I looked at this Will it seemed to me perfectly clear that the intention of the testatrix was to leave her estate only to those daughters which survived her. The reason that it seemed to me to be clear stemmed from the language "such of them my daughters … as shall survive me" together with the fact that the language of the clause goes on to provide "and if more than one in equal shares". Had the...
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Why Gifts in Wills Might Fail
...predeceases, any issue taking under section 33 must satisfy the same contingency. Since Ling v Ling , two cases, Rainbird v Smith [2012] EWHC 4276 (Ch) and Hives v Machin [2017] EWHC 1414 (Ch) have each considered section 33 in the context of a similarly worded class gift leaving property t......