Bell v Georgiou

Hearing dates : 15 th, 16 th and 17 th May 2002

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Hon Mr Justice Blackburne

Mr Justice Blackburne

Introduction

This is a claim under section 20(1) of the Administration of Justice Act 1982 for rectification of the last will dated 10 August 1998 of Joan Mary Bell who died on 5 April 2000 two weeks short of her 84 ^th birthday.

By that will Mrs Bell appointed the first defendant, who is a solicitor, to be her executrix. It was the first defendant who had taken Mrs Bell's instructions for and drafted the will. After giving her son, the claimant Douglas William Dawson Bell, a legacy of £150,000 and such of her chattels and personal effects, including her car, as he might select, she gave the remainder of her estate to the first defendant upon trust to pay her funeral and testamentary expenses and debts and, subject thereto, as to £26,000 for various beneficiaries (in differing sums ranging from £500 to £10,000), as to £4,000 for three charities (two of them receiving £1,000 each and the other £2,000) and as to the balance for the "RAF Benevolent Fund of 67 Portland Place, London W1 in memory of my late husband Squadron Leader W E D Bell DFC".

Her husband had died many years earlier. He had left to her the whole of his estate. After distinguished war service and a successful business life after the war, Squadron Leader Bell had spent the last year of his life at the RAF Benevolent Fund Home in Rustington, Sussex, where he had suffered a fatal stroke, aged 59, in November 1970.

The first defendant obtained probate of Mrs Bell's will on 31 January 2001. Her estate was sworn for probate with a net value of £669,371. The effect of the dispositions made by her will meant that no inheritance tax was payable since the value of the gifts other than to charity was less than £231,000, the nil-rate band at the time of her death. Subject to the costs of these proceedings, the sum which the RAF Benevolent Fund (as residuary legatee) can expect to receive will amount(on current estimates) to just under £600,000. At the time of Mrs Bell's death it was nearer £ ¹/₂ million. The claimant's primary contention is that his mother intended her will to give to him a further pecuniary legacy (over and above the £150,000 already given to him by the will) either of such amount as represented the nil-rate band at the time of her death, namely £231,000, or else £223,000 being the amount of the nil-rate band in August 1998 when she executed her last will. He contends that the first defendant was aware that this was his mother's wish. His alternative contention is that, apart from the fixed sum legacies totalling £180,000 set out in the will, Mrs Bell intended to give the RAF Benevolent Fund a legacy of no more than £11,000. She did not intend that it should receive any more and gave the first defendant no instructions over what should happen to the rest of her estate. He contends that the will should be rectified so that its dispositive provisions are limited to legacies in these amounts (totalling £191,000) with the result that the reminder of her estate passes as on a partial intestacy. As her sole next-of-kin he will take that remainder.

The terms of the will are perfectly clear. No issue of construction arises. Nor is there any issue concerned with Mrs Bell's testamentary capacity at the time that she executed her will (or, for that matter, during the remaining 20 months of her life). The claim is based, fairly and squarely, on what the claimant says was the will's failure to give effect to his mother's testamentary intentions and the application of section 20(1) of the 1982 Act.

The position in law

Section 20(1) provides as follows:

"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 shall be rectified so as to carry out his intentions."

The section then goes on to provide that an application for an order under the section should not, except with the court's permission, be made after the end of a six month period from the date on which representation to the estate is first taken out. The application in this case was issued on 18 July 2001, a little short of the expiry of the six month period. The RAF Benevolent Fund is named as the second defendant.

In the case of In re Segelman (decd) [1996] Ch 171 at 180, Chadwick J said of section 20(1):

"The subsection requires the court to examine three questions. First, what were the testator's intentions with regard to the dispositions in respect of which rectification is sought. Secondly, whether the will is so expressed that it fails to carry out those intentions. Thirdly, whether the will is expressed as it is in consequence of either (a) a clerical error or (b) a failure on the part of someone to whom the testator has given instructions in connection with his will to understand those instructions."

A clerical error is:

"An error made in the process of recording the intended words of the testator in the drafting or transcription of his will …"

See Wordingham v Royal Exchange Trust Co Limited [1992] Ch 412 at 419. The essence of the matter is that a clerical error occurs where someone, who may be the testator himself, or his solicitor, or a clerk or typist, writes something which he did not intend to insert or omits something which he intended to insert. This is to be contrasted with a failure to understand the testator's instructions where what is involved is a misunderstanding or breakdown in communication between the testator and his solicitor, or between the testator and the person who is writing out the will. See Hawkins On The Construction of Wills, Fifth Edition, at paragraph 1–10. The remedy is only available if it can be established not only that the will fails to carry out the testator's instructions but also what those instructions were. It will not be available where the mistake occurs, inter alia, because the testator never had any intention relevant to the events which actually occurred or he failed to appreciate the legal effect of the words used in his will. Moreover, as was made clear in Re Segelman (decd) by Chadwick J (at 184):

"…although the standard of proof required in a claim for rectification made under section 20(1) of the Act of 1982 is that the court should be satisfied on the balance of probability, the probability that a will which a testator has executed in circumstances of some formality reflects his intentions is usually of such weight that convincing evidence to the contrary is necessary."

This passage was referred to with approval by Sir Christopher Slade in Walker v Geo Hewson Medlicott & Son (a firm) [1999] 1AER 685 at 690. The "contrary" to which the passage refers is that the testator intended his will to contain a provision different from what it actually contains.

The witnesses

It is convenient if I say something about the claimant and the first defendant as witnesses. They were the only persons who gave evidence. The claimant struck me as slightly impetuous. He was given to interrupting and anticipating questions and giving answers which often drifted off into irrelevancies. He was clearly intelligent and articulate. His claim to recall in some detail what happened at a meeting with the first defendant on 25 July 2000 and at two later meetings on 26 August and 11 September that year must be treated with caution. I say that notwithstanding that he had been (and was until recently) a journalist who was well used to interviewing people and taking interview notes. Although aided by very brief notes he took at the first and third of those meetings, I have the impression that in some respects (for example when seeking to recall what lay behind some of his notes) he had jumped to unjustified conclusions. In one or two cases, I suspect that he had simply misunderstood what he was told. Over the time that has passed since those meetings, he has plainly given a lot of thought to the circumstances in which he believes the will to have been made and what passed between him and the first defendant. The inevitable result is that true and accurate recollection has become a little clouded. Although I have no reason to think that he was doing other than telling his account of events as he honestly recalled them, I treat aspects of his evidence with caution. In short, although honest, he was not necessarily reliable.

The first defendant had only a very vague recollection of events and made no pretence to suggest otherwise. Indeed, she came across as an exceptionally frank witness and, in contrast to the claimant, as shy and diffident. She had no particular insights to offer; on the contrary, she seemed at times only too ready to agree with whatever theory that was put to her as to what might have happened on this or the other occasion. As someone who...