Ashwin Joshi and Others v Dhanlaxmi Kirit Kumar Mahida
| Jurisdiction | England & Wales |
| Judge | Jonathan Gaunt |
| Judgment Date | 08 March 2013 |
| Neutral Citation | [2013] EWHC 486 (Ch) |
| Docket Number | Case No: HC12F02367 |
| Court | Chancery Division |
| Date | 08 March 2013 |
[2013] EWHC 486 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand. London. WC2A 2LL
Jonathan Gaunt QC
(Sitting as a Deputy Judge of the Chancery Division)
Case No: HC12F02367
Sidney Ross ( instructed by Markand & Co) for the Claimants
The Defendant did not appear and was not represented
Hearing date: 7 th March 2013
Jonathan Gaunt QC:
This is a claim under section 20(l)(a) of the Administration of Justice Act 1982 for rectification of the Will dated 17th July 2002 of Kiritkumar Mahendersinh Mahida. The Testator died on 2nd May 2006 having duly executed the Will, which was his last Will. By clause 2 he appointed the First and Second Claimants to be his executors and trustees. The Third to Sixth Claimants are the beneficiaries who stand to gain by the present claim. The Defendant is the Testator's widow and stands to be adversely affected by the claim. The Will was unsuccessfully challenged by the Defendant on the grounds of lack of testamentary capacity and want of knowledge and approval and was pronounced for in the Chancery Division of the High Court on 3rd December 2010. Probate was subsequently granted to the First and Second Claimants on 16th December 2011. The Grant of Probate contained a certificate stating the gross value of the Estate at £964,247 and its net value at £513,682.
By the Will the Testator appointed the First and Second Claimants as his executors and trustees. By clause 3(a) he devised his property at 5 Cromwell Road, Forest Gate after payment of all the mortgages registered against the property to his brother Aijunsinh Mahendrasinh Mahida and his three sons absolutely in equal shares and directed his executors and trustees to sell that property and that the proceeds of sale should be divided equally between his brother and his brother's three sons.
By clause 3(b) the Testator devised and bequeathed all his personal property of whatsoever nature, including all his personal savings and investments and personal belongings to his brother.
Clause 3(c) is the provision sought to be rectified in these proceedings. It reads:
"I GIVE DEVISE AND BEQUEATH one half of my share in the property at 148 150 and 152 Leytonstone Road London E15 1UA to my brother [and his three sons] for their own use and benefit absolutely in equal shares."
By clause 3(d) the Testator devised and bequeathed the remainder of his property of whatsoever nature both real and personal including his share in the property at 65 Westbury Road, Harlow to his wife, the Defendant. I was told that the Testator and his wife had separated in about 1998 and that he had continued to occupy the former matrimonial home at 5 Cromwell Road, whereas she had gone to live at 65 Westbury Road, Harlow.
Clause 4 of the Will provided as follows:
"I DIRECT my executors and trustees to sell my share in the property at 148 150 and 152 Leytonstone Road … and also to sell my property at 5 Cromwell Road and that the proceeds of the sale are to be distributed in equal shares to my brother and his three sons mentioned herein and I further direct that my wife … should not be entitled to any interest in the property at 5 Cromwell Road or my share in the freehold property at 148 150 and 152 Leytonstone Road aforesaid including the business in respect of any of my savings or investments held in my sole name"
It will immediately be apparent that the terms of clause 3(c) and clause 4 of the Will are inconsistent. Clause 3(c) provides for the Testator's brother and his three sons to have "one half of my share" in the Leytonstone Road property. The other half share is not mentioned and would go to the Testator's widow under the residuary gift in clause 3(d). Clause 4, however, envisages that whole proceeds of the sale of the Testator's share in the Leytonstone Road property going to his brother and the brother's three sons and states in terms that his widow should not be entitled to his share in the Leytonstone Road property. Something has obviously gone wrong.
These proceedings were issued on 12 th June 2012 for rectification of the Will by substituting for the words "one half of my share" in clause 3(c) the words "my one half share". The claim was therefore brought within 6 months of the date of the grant of probate. The Defendant acknowledged service and filed a Defence and Counterclaim dated 25 th June 2012 in which she took the point that some aspect of the Will constituted a fine or forfeiture which was rendered illegal by the Bill of Rights 1689. A case management conference was fixed for 29 th November.
On 20 th November the Defendant made an application to set aside the judgment (presumably in the probate action) on the ground that she had not been given an opportunity to be heard. On the 29 th November Master Marsh gave directions for the hearing of the rectification claim and also directed that upon the hearing of the Defendant's application the Defendant should show cause why her "Defence and Counterclaim" should not be struck out. The Defendant's application came on before Master Marsh on 3 rd January 2013. The Defendant did not attend and her application was dismissed and her Defence and Counterclaim struck out and the Defendant was ordered to pay the Claimants' costs of the application and hearing. On the hearing of the substantive claim for rectification the Defendant again did not attend and did not adduce any evidence in opposition to the claim.
Section 20(1) of the Administration of Justice Act 1982 provides:
"If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence—
a) of a clerical error; or
b) of a failure to understand his instructions,
it may order that the will be rectified so as to carry out his intentions."
Sub-section (2) provides that an application for an order under the section shall not, except with the permission of the Court, be made after the end of the period of 6 months from the date on which representation with respect to the estate of the deceased is first taken out. That condition is satisfied in this case.
In Re Segelman [1996] Ch 171, Chadwick J identified the correct approach to the application...
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Rectification
...any document or of the way the testator/testatrix dealt with his/her property to give effect to his/her intention (see Joshi v Mahida [2013] EWHC 486 (Ch)). It will be appropriate to seek rectification where the testator/testatrix or the draftsman omitted or included something in error in t......
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Table of Cases
...174 Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776, [2011] 2 WLR 1121, [2012] 1 All ER 1265, [2011] 3 FCR 495 177–179 Joshi v Mahida [2013] EWHC 486 (Ch), [2013] WTLR 859 116, 120 Jump v Lister [2016] EWHC 2160 (Ch), [2017] WTLR 61 115, 228 Kelly v Brennan; Kelly (Deceased), Re [2020] EWHC......