Clarke v Brothwood & Others
| Jurisdiction | England & Wales |
| Judgment Date | 16 November 2006 |
| Neutral Citation | [2006] EWHC 2939 (Ch) |
| Docket Number | CASE NO:HC05C00875 |
| Court | Chancery Division |
| Date | 16 November 2006 |
[2006] EWHC 2939 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
In The Estate of Constance Marjorie Martin Deceased
CASE NO:HC05C00875
This is an action for the rectification of a will pursuant to section 20 of the Administration of Justice Act 1982 in consequence of an unfortunate but clear mistake in the drafting. The Claimant is (with the first Defendant) an executor of the will and the partner in the firm responsible for the drafting error.
Whilst all sides recognise that there was a drafting error and that the will as drafted does not represent the intentions of the testatrix, there is a dispute between the parties as to whether it is an appropriate case for rectification.
Stephen Lloyd represented the Claimant. He applied for the rectification of the will to give effect to the true intentions of the testatrix. He contended that this was a plain case. Indeed it was suggested that the master could have dealt with it .
Thomas Entwistle represented the First Defendant. She is a co-executrix and one of the residuary legatees under the will. She stands to gain by the proposed rectification but was at one stage opposed to it. She took a neutral stand to the claim. She was, as I understand it, represented in case any adverse application was to be made in respect of costs.
Leon Sartin represented the Second and Third Defendants. They are the next of kin and stand to gain if and in so far as there is a partial intestacy. Mr Sartin contends that there should be no rectification. His principal point is that there was no clerical error here so as to bring the proceedings within section 20 of the Act. As a subsidiary point he contends that it is not clear what bequests the testatrix would have made if there had been no error.
Francis Barlow QC represented the Fourth and Sixth Defendant. They are two of the residuary legates and stand to gain if the will is rectified. They support the application for rectification in the terms sought by the Claimant.
The Fifth Defendant did not appear and was not represented before me. She is a residuary legatee and stands to gain from the proposed rectification. She has written to the Court expressing a neutral attitude to the claim but also expressing reservations about the actions of Mr Clarke.
At the outset of the hearing before me Mr Barlow Q.C sought to amend the position of his clients by raising a construction issue. He sought to contend that the will ought, as a matter of construction, be interpreted in such a way as to give effect to Miss Martin's intentions. Although his solicitors had mentioned the possibility of such an application to the Claimant's solicitors as long ago as August 2005, no steps had been taken to regularise the application. Mr Sartin made the point that he only knew about the application yesterday. In those circumstances he had not prepared himself for a construction argument. In those circumstances I allowed the Fourth and Sixth Defendants permission to amend but adjourned the argument on the construction issue. It will, of course, only be necessary to deal with it if and in so far as the rectification claim fails.
The evidence
The evidence comprised witness statements from Mr Dodds, Mr Clarke, Mrs Hall and Mrs Brothwood together with a number of relevant documents.
Mr Dodds, Mrs Hall and Mr Clarke are all partners in the firm of Mayo & Perkins of Eastbourne. Mr Dodds has no personal knowledge of the making the will. He made a witness statement because Mr Clarke was on sabbatical at the relevant time. He did however exhibit relevant documents from the will file. Mrs Hall was a trainee at the time the will was made. It is possible that she was present when Miss Martin was seen for the purpose of taking instructions for the will. A number of the documents have a reference on them that suggest that she may have been involved. She has no recollection of seeing Miss Martin or of being involved. Her evidence was thus of limited assistance and she was not cross-examined.
Mrs Brothwood has filed a witness statement in which she took a neutral position in the litigation. She made a number of comments critical of Mr Clarke. However she did not pursue the allegations at the trial or seek to cross-examine Mr Clarke.
Mr Clarke has produced 2 witness statements. His evidence is important and I shall deal with it below. He was cross-examined by Mr Sartin and Mr Barlow Q.C but not by Mr Entwistle.
In addition I was provided with the will file. It was common ground that it contained a number of relevant documents. These include an important file note taken by Mr Clarke when he took the instructions for the will, correspondence between Mr Clarke and Miss Martin, the draft wills with hand-written amendments by Miss Martin. I was also provided with the will itself and the grant of probate.
The Will
Before looking at the circumstances in which the will was made it is convenient to look at the will itself in order to understand the nature of the problem that has arisen.
The will is dated 31 st December 1993 and is properly executed. It was proved on 14 th October 2004 by the two named executors. Clauses 1 to 3 are uncontroversial. Clause 4 of the Will contains a specific gift of her personal chattels. By clause 5 Miss Martin left the residue of her estate upon trusts for sale and administration in conventional form and directed her Trustees (by paragraphs (a) and (b)) to pay the proceeds as to "a one-tenth share thereof" to each of two named charities and (by paragraph (c)) as to "a one-twentieth share thereof" to each of her four named godchildren with a substitutional proviso in favour of the children of a predeceasing godchild. Clause 6 contains an accruer clause expressed to operate in the event of the lapse of any share. The Will contains no other beneficial disposition of the estate.
On a literal construction of clause 5 of the Will 60% of the residuary estate is undisposed of. The contention of Mr Lloyd and Mr Barlow Q.C is that the Will should be rectified in such manner that the estate is divided not in fractional shares of 1/10th, 1/10th, 1/20th, 1/20th, 1/20th and 1/20th (which accounts for only 40% of residue) but in percentage shares of 10%, 10%, 20%, 20%, 20% and 20% (which accounts for 100%).
The making of the will
4.1. The will file
The process of drafting the will began with a meeting between Miss Martin and Mr Clarke which took place on 27 th April 1993. Mrs Hall may have been present. Miss Martin's instructions were recorded in the note of attendance taken by Mr Clarke. So far as relevant this reads as follows:-
"Residue
1/10 Trinity Foundation Trust (details to follow)
1/10 Trinity Church [Holy] E/B1
/20 to each godchild (names + addresses to follow) if they pred. then to children at 21. if not to other godchildren"
Following the meeting, a draft will was prepared. The draft bears Mrs Hall's initials " PH". The draft was sent to Miss Martin by covering letter dated 4 th June 1993. Clause 6 of the draft provides that the Testatrix's residuary estate is to be held upon trust "as to a one-tenth share thereof" for each of the Foundation and Church and "as to a one-twentieth share thereof to each of my godchildren namely". A space is left for Miss Martin to provide the names and addresses of the godchildren.
Miss Martin returned the draft will to the solicitors with a number of hand-written alterations by letter dated 31 st August 1993. Miss Martin wrote the names and addresses of the four godchildren on the draft. She also made a number of spelling corrections, and enclosed a letter as to the wording of the gifts to the 2 charities.
A final draft of the will was prepared in which the names and addresses of the four godchildren are added to clause 5 (an earlier clause in the original draft was deleted). The final draft was sent to Miss Martin for her approval by letter dated 20 th October 1993.
The final draft was approved and an engrossment sent to Miss Martin for execution by letter dated 23 rd December 1993. The letter also responds to Miss Martin's concern that clause 5 should carry all her property not otherwise dealt with. On 31 st December 1993 the will was duly executed. It was returned to Mayo & Perkins by covering letter dated 3 rd January 1994 and they acknowledged receipt by letter dated 17 th January 1994. In early 2002 Miss Martin informed Mayo & Perkins, at the same time as arranging for an EPA, of a change of address for Katherine Brothwood and Patrick Keef.
4.2.Mr Clarke's evidence
In his witness statement Mr Clarke makes a number of points:
Although I have no recollection of the aforementioned meeting [27th April 1993] it is inconceivable that I would accept instructions from a client which did not deal with the distribution of her entire residuary estate. If I genuinely believed that she wished to bequeath a1/20th share of her residuary estate to each of her four godchildren it would have been blatantly obvious to me that 60% of her estate would pass on intestacy and in accordance with my usual practice I would not only make this abundantly clear to the client (at the meeting and in writing) but in all probability I would not, unless it were a last resort, prepare a will on that basis.
I have acted for Miss Martin on a number of occasions since 1993 and my recollection of her is as a professional and intelligent woman. From what I know of Miss Martin it is inconceivable that she would have knowingly only have bequeathed 40% of her residuary estate.
My hand written attendance note refers to …"one twentieth to each of the...
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