Mr Graham Slattery & Mrs Ruby Victoria Jagger v Mr Arthur Jagger & Others
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Hodge,JUDGE HODGE QC |
| Judgment Date | 10 November 2015 |
| Neutral Citation | [2015] EWHC 3976 (Ch),[2016] EWHC 3976 (Ch) |
| Court | Chancery Division |
| Date | 10 November 2015 |
| Docket Number | Claim No. B30MA144 |
[2015] EWHC 3976 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
His Honour Judge Hodge QC
Sitting as a Judge of the High Court
Claim No. B30MA144
Counsel for the Claimants: Mr Alexander Drapkin
Counsel for the Defendants: Mr Paul Lakin
APPROVED JUDGMENT
His Honour Judge Hodge QC:
This case concerns the last will of the late Mr Albert Jagger who died on 27 th March 2014 at the age of 89. Prior to his death, he had made two wills which are relevant for present purposes. The first was executed on 5 th April 2007 and was made not long after the unfortunate deaths of two of Mr Jagger's three sons by his first marriage, Stephen and Ian. The second will which is relevant for present purposes, and which it is accepted is a valid will and had the effect of revoking the 2007, was dated 10 th June 2011. It was executed at a time when Mr Jagger was 86 years of age. The solicitors responsible for the drafting of both wills were a firm of solicitors with offices in Nelson and in Burnley in the County of Lancaster called Southerns.
Probate of the 2011 will was granted out of the Manchester District Probate Registry on 29 th April 2014 to the named executors, Mr Graham Slattery and Mrs Ruby Victoria Jagger. They are the claimants in this litigation. Mrs Jagger was the second wife of the late Albert Jagger. They had married in 1977 and therefore their marriage had lasted some 36 or 37 years until Mr Jagger's death in March 2014. Mrs Jagger had a son by her earlier marriage, Mr Graham Slattery, who is the first named claimant. They bring the present claim in their capacity as the executors of the estate of Mr Albert Jagger and also in their personal capacities. The defendants are, first, Mr Arthur Jagger, who is the only surviving son of Albert Jagger's first marriage, and David, Matthew, and Gareth Jagger, who are grandsons of Albert Jagger, having been the sons of the two of Mr Jagger's three sons, Stephen and Ian, who predeceased their father.
The 2011 will contained, in clause 3, a clause which reads as follows:
"I GIVE DEVISE AND BEQUEATH my beneficial share (defined as 'my Share') in (or in the future proceeds of sale of) any freehold or leasehold property (defined as 'the Dwelling') which my Wife and I co-own as principal residence at my death and I DECLARE that this gift is to be free not only of any money charged or otherwise secured on my share but also of any money charged or otherwise secured on the dwelling itself (and that all such money should be paid free of tax out of my residuary estate I shelve [sic] the cost of discharging any security and any interest falling due before discharge) continuing for her own use and benefit absolutely."
The expression 'my Wife' was a term defined in clause 2 of the will, which appointed Mrs Jagger (therein defined as 'my Wife') and Mr Jagger's stepson, Mr Graham Slattery, as his executors and trustees. It will be immediately apparent that within the parenthesis of the declaration in clause 3 words have been included, namely, "I shelve", which are difficult to understand in that context. Clause 3 also omits to identify any object of the gift, devise and bequest of Mr Jagger's beneficial share in the dwelling which he and his wife co-owned as principal residence both at the date of the will and, in the event, as at the date of Mr Jagger's death.
It is the claimants' case that by a clerical error, the words 'to my Wife' were omitted from clause 3 of the will as executed by the testator and subsequently proved. It is said that the testator intended by clause 3 of his will to pass his share in the property at 39 Chichester Close, Burnley to Mrs Jagger absolutely and that clause 3 of the will should be construed to that effect. Alternatively, it is said that clause 3 of the will ought to be rectified so as to carry out the deceased's intentions by inserting the name of the beneficiary, namely his wife, that the testator intended to inherit his share of the property as identified in clause 3 of the will. The claim is for:
(1) A declaration that on the true construction of the will the testator's share in the property at 39 Chichester Close, Burnley, passes to Mrs Jagger; alternatively
(2) An order pursuant to section 20 of the Administration of Justice Act 1982 for the rectification of the will by the inclusion of the words 'to my wife Ruby Victoria Jagger' at clause 3 of the will.
The claimants are represented by Mr Alexander Drapkin (of counsel) and the defendants are represented by Mr Paul Lakin (also of counsel). The trial commenced at about 10.30 yesterday morning, Monday 9 th November. There were three witnesses who gave evidence: Ms Anna Louise Nuttall, the draftsperson of the 2011 will; the second named claimant Mrs Jagger; and the first defendant, Mr Arthur Jagger. Before turning to the witness evidence, and in order to set the evidence of the witnesses in context, it is appropriate for me to refer to the documentary evidence as contained within Southerns' will files relating to the making of both the 2007 and the 2011 wills.
To put the documentary evidence in context, it is important to bear in mind that Mr Jagger's two sons by his former marriage, Stephen and Ian, had died in July and October 2006 respectively. The loss of two sons so soon after each other must have been a terrible blow for Mr Jagger. The 2007 will file was opened on 17 th November 2006. The responsible fee earner was apparently Mr Andrew Buchanan, a partner in Southerns. On 20 th November 2006, he wrote to Mr Jagger referring to their meeting on 17 th November 2006. He recorded that in the course of that meeting, Mr Jagger had given Mr Buchanan instructions to prepare a new will for him which it was agreed would take the following form:
(1) He would appoint his wife and his stepson to be his executors;
(2) He would give to his wife all his personal belongings and his interest in the property at 39 Chichester Close, Burnley;
(3) He would then give the remainder of his property (basically his funds in the Halifax) upon trust to divide them into three shares, to pay one share to his wife, and to divide the other two shares equally between Mr Jagger's son Arthur, and his three grandsons Mathew, David, and Gareth. If Mr Jagger's wife pre-deceased him, then the gift to her of the house, personal belongings, and one third of the estate would fail and would simply be added to, and divided equally between, the son and the three grandsons.
Mr Buchanan noted that he had discussed with Mr Jagger whether he held Chichester Close as tenant in common or as joint tenant with his wife, and Mr Buchanan had explained the difference to him. Mr Jagger decided that he did not wish particularly to consider that matter in his will. Mr Buchanan recorded that he had made an appointment for Mr Jagger to come and see him on 24 th November 2006 at 10.00am to sign his will. However, he had subsequently received a telephone call that he was to take no further action on these matters until Mr Jagger contacted Mr Buchanan further and therefore he had "held off from preparing a draft will".
There matters appear to have rested until 6 th February 2007. There is, however, no documentary record of any attendance on that day. There is a time ledger card which records what would appear to have been (from the amount charged) a 24 minute attendance to file/client on 6 th February 2007. There is a journal entry on 7 th February 2007. There is then an attendance note dated 5 th March 2007 by Mr Buchanan on both Mr and Mrs Jagger. It records that Mr Buchanan had seen them that afternoon in relation to their wills. They discussed the possibility of the fact that the house was now a very valuable house proportionately and that the way they were leaving their estate was potentially very unfair to the family of whichever of them died first. Mr Buchanan explained the matter at length and they both agreed. After some discussion it was agreed that they should sever the joint tenancy in relation to the present property and then make wills which left the survivor the right to live in the half of the house which belonged to the first to die (with rights to substitute dwellings and a full life interest) and then leave the share of the first to die on the second death to the beneficiaries whom they would wish to see benefited from their own family. The remainder of the wills were to be as before. Mr Buchanan recorded that he said that he would send them drafts for consideration and see them as quickly as possible to get them signed off. That attendance appears to have lasted for some 36 minutes.
On 7 th March 2007 Mr Buchanan wrote to Mr and Mrs Jagger referring to the meeting on 5 th March and enclosing a draft will for each of them to look through. Basically, these were said to follow the terms of their existing wills save that now in clause 4 of Mr Jagger's will and clause 5 of Mrs Jagger's will they made provision for the half share which each owned in 39 Chichester Close (or other their dwelling) to be held on trust for the survivor of them and thereafter to pass to their family members. Mr Buchanan said that these wills reflected their lengthy discussions on 5 th March and that he would be grateful if Mr and Mrs Jagger could now make an appointment to see him and they would go through the wills. If all was in order, he would have them prepared immediately for their signature on the same day.
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