Seymour and Another. v Seymour
| Jurisdiction | England & Wales |
| Judgment Date | 10 February 1989 |
| Date | 10 February 1989 |
| Court | Chancery Division |
Chancery Division.
Mervyn Davies J.
Mr. Launcelot Henderson (instructed by Archer & Archer, Ely) for the plaintiffs.
Mr. Henry Harrod (instructed by Archer & Archer, Ely) for the defendant.
The following cases were referred to in the judgment:
Colebrook's Conveyances, Re; Taylor v. Taylor WLR[1972] 1 W.L.R. 1397
Russell & Anor. v. I.R. Commrs. WLRTAX[1988] 1 W.L.R. 834; [1988] BTC 8041
Sherdley v. Sherdley WLRTAX[1986] 1 W.L.R. 732; [1986] BTC 220
Slocock's Will Trusts, Re UNK[1979] 1 All E.R. 358
Whiteside v. Whiteside & Ors. ELR[1950] Ch. 65
This was an application by originating summons to rectify an error in a deed of family arrangement executed to take advantage of theFinance Act 1978 section 68Finance Act 1978, sec. 68(see now the Inheritance Tax Act 1984 section 142Inheritance Tax Act 1984, sec. 142).
A deed of family arrangement was executed varying a will. Subsequently, but still within two years of the death of the testator, it was thought that a more advantageous variation of the will might be made and a second deed was executed.
Inadvertently the solicitor drafting the second deed inserted the sum of £50,000 instead of the intended amount of £250,000. The parties therefore sought to correct the error.
It was suggested that because all the parties wished the deed to be rectified there was no "adversarial issue", and the court had no jurisdiction to grant the application.
Held, granting the application:
1. If a mistake was made in a document legitimately designed to avoid tax, it might be corrected to reflect the intention of the parties when it was executed. (Re Slocock's Will Trusts UNK[1979] 1 All E.R. 358 followed.)
2. The absence of an adversarial issue was no bar to granting rectification. (Whiteside v. Whiteside & Ors. ELR[1950] Ch. 65 distinguished; dictum of Sir John Donaldson M.R. in Sherdley v. Sherdley TAX[1986] BTC 220 at p. 226 applied.)
per curiam: In view of the decision in Russell & Anor. v. I.R. Commrs. TAX[1988] BTC 8041, the second deed was likely to be ineffective for capital transfer tax purposes.
Mervyn Davies J.: This is an application to rectify a deed of family arrangement. The application is made by an originating summons supported by affidavit evidence. Rectification applications are usually made by writ with oral evidence then adduced. However that course is not invariable (see Re Colebrook's Conveyances; Taylor v. TaylorWLR[1972] 1 W.L.R. 1397). In the circumstances of this case I think I may properly entertain an application by originating summons and affidavit evidence that is not cross-examined. The circumstances I refer to are that the plaintiffs and the defendant and their advisers all speak in the affidavit evidence to the same...
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