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Published online by Cambridge University Press: 24 November 2003
Where a testator died before 1 January 1983, there was no general power for a court to rectify his will. The Courts of Equity had, by tradition, the power to rectify documents inter partessuch as conveyanceswhich did not accurately record what had been agreed by those who were parties to them. This power of rectification applied also to voluntary settlements, where a settlor could obtain rectification by proving that the settlement did not represent his true intention. But, for reasons which are not clear, it had become generally accepted that the equitable doctrine of rectification did not apply to wills.
1 Not only the Court of Chancery—the major court of Equity—but also the minor courts of Equity, such as the Court of Requests.
2 See Snell's Equity (30th edn., London 2000), pp. 693-704.
3 Thin v. Thin (1650) 1 Rep. Ch. 162.
4 Re Butlin's S.T. [1976] Ch. 251.
5 Various reasons have been given for this, but none of them appears convincing. See Law Reform Committee's 19th Report, The Interpretation of Wills, Cmnd. 5301, 1973, para. 10.
6 Rhodes v. Rhodes (1882) 7 App. Cas. 192, 198.
7 Harter v. Harter (1873) L.R. 3 P. & D. 11, 19; Morrell v. Morrell (1882) 7 P.D. 68; In the Goods of Schott (1901) P. 190; In the Goods of Swords [1952] P. 368; Re Reynette-James [1976] 1 W.L.R. 161, 166. Words were added in two cases; In the Goods of Bushell (1887) 13 P.D. 7 and In the Goods of Huddleston (1890) 63 L.T. 255: but these decisions were described as “heretical” in Schott, supra..
8 [1971] P. 62.
9 Not from extrinsic evidence.
10 Re Neeld [1962] Ch. 643.
11 In Re Cory [1955] 1 W.L.R. 725 and Re Riley's W.T. [1962] 1 W.L.R. 344 insertions were made, whereas in Re Murray [1955] Ch. 69 and Re Follett [1955] 1 W.L.R. 429 the court refused to make any insertion.
12 The L.R.C. went on to recommend that rectification claims should not, without the leave of the court, be brought more than six months after the grant of representation. Compare the time limit for bringing claims under the Inheritance (Provision for Family and Dependants) Act 1975, s. 4.
13 L.R.C.'s 19th Report para 21.
14 Section 20(2) provides as follows: “An application for an order under this section shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out”. See note 17.
15 [1970] 2 Q.B. 81, 98. The Court of Appeal preferred this formulation to “strong irrefragable evidence” used by Lord Thurlow L.C. in Countess of Shelburne v. Earl of Inchiquin (1784) 1 Bro. C.C. 338, 341 or “beyond all reasonable doubt”.
16 [1991] Ch. 171.
17 [1991] Ch. 171, 184.
18 [1991] Ch. 171.
19 [1996] Ch. 171, 180.
20 I.e. evidence from outside the will.
21 Family Law Reform Act 1969, s. 15.
22 A draftsman who fails to ask a 90-year-old testator who is to benefit if his 60-year-old spouse predeceases him is less likely to be considered negligent than the solicitor who fails to ask the 60-year-old testator who is to benefit if his 90-year-old spouse predeceases him.
23 An example might be a trust in favour of the testator's pets—without specifying a time limit.
24 See section 21 of the Administration of Justice Act 1982 and Hawkins on the Construction of Wills (5th edn., London 2000), chap. 2.
25 See White v. Jones [1995] 2 A.C. 207.
26 Or remoter descendant.
27 See Hawkins on the Construction of Wills, chaps. 3 and 24.
28 I.e. evidence from outside the Will.
29 [1999] 1 W.L.R. 727.
30 This is because, before 1983, it was not possible to cure errors in categories (ii) and (iii) but it was possible to cure errors in category (i).
31 (1874) L.R. 7 H.L. 364.
32 Charles always lived with his parents, except for a short period. The will provided an annuity for the testator's wife, to be paid “by my executor Forster Charter” as long as they should “reside together in the same house”. There was a similar provision for the testator's unmarried daughter, Barbara, who also lived with her parents.
33 (1871) L.R. 2 P & D 315.
34 Lord Cairns L.C. did say, at page 386, that he thought that the problem arose from a clerical error (category (ii)); while Lord Chelmsford said, at page 372, that he thought that it arose from the draftsman's failure to understand the testator (category (iii)).
35 It is possible to devise a set of circumstances where there is a professionally-drawn will which contains a clerical error which has not been caused by the draftsman's negligence. For example, a testator may send written instructions to the draftsman, indicating that he wants X to have a legacy of £1,000, whereas he intended to write “£10,000”. The solicitor could not be blamed for producing a will which gives X a legacy of £1,000, even though this would amount to a rectifiable clerical error. Such an example would, however, be extremely rare (and difficult to prove on the facts). Such a case is qualitatively different from the case where the draftsman makes an assumption or a guess as to what the testator intends, which turns out to be incorrect. For example, the testator has two nephews called Robert Smith, one who lives in Oxford and the other who lives in Cambridge. The testator tells the draftsman that he wants to leave a legacy of £1,000 to “my nephew Robert Smith”; the draftsman assumes he means Robert Smith, Cambridge. If the draftsman inserts the address of Robert Smith, Oxford, on his own initiative, that would surely be negligence, and an error which is rectifiable.
36 On the authority of Re Segelman [1996] Ch. 171 (discussed below) it would seem that a solicitor who inserts a provision in a will without obtaining the testator's instructions and then fails to delete or amend it once he has received his instructions has made a clerical error; but it is surely going too far to describe as a clerical error a case where a provision has not been inserted in a will—such as a default provision in the event of lapse or ademption—which a testator may well have wanted to be included had he been asked by the draftsman.
37 For an example of a case where the seeking of instructions was relevant, see Sutherland v. Public Trustee [1980] 2 N.Z.L.R. 536, discussed by R. Kerridge and A.H.R Brierley in [1999] Conv. 399 at pp. 400-401.
38 [1992] Ch. 412 (Edward Evans-Lombe Q.C., sitting as a deputy High Court judge.)
39 Edward Evans-Lombe Q.C. referred to the definition of “clerical error” contained in R. v. Commissioner of Patents ex parte Martin (1953) 89 C.L.R. 381.
40 [1985] 1 W.L.R. 905, 912.
41 [1996] Ch. 171.
42 Chadwick J. ordered the deletion of the proviso.
43 The procedure relating to non-contentious probate proceedings is set out in rule 55 of the Non-Contentious Probate Rules 1987, made under section 127 of the Supreme Court Act 1981. If there is a probate action pending, the rectification application should be made in those proceedings. If there is no such action, the rectification application should be made in the Family Division if it is not contentious (unless a question of construction arises in which case a construction summons should be brought in the Chancery Division). If the application is to be opposed, an action should be begun in the Chancery Division. The Civil Procedure Rules 1998 apply to all proceedings in the County Court, the High Court and the Court of Appeal (Civil Division). Part 57 of the Civil Procedure Rules (in force since October 2001) covers contentious probate, rectification, and substitution and removal of personal representatives.
44 By contrast, in Horsfall v. Haywards [1999] 1 F.L.R. 1182 (considered below), the solicitors originally denied negligence. By the time of the trial, however, they admitted that they had been negligent.
45 In Wordingham, the solicitor “frankly accepted that the omission of a provision representing the substance of what had been clause 4 of the 1979 will was, in the light of his instructions, an error on his part.” [1992] Ch. 412, 416. In Segelman, the solicitor “had overlooked the proviso in clause 11(a) of the draft will … [and] … failed to appreciate on 5 May … that the proviso which he had included in the draft will on his own initiative had become inapt … [He] simply forgot that the proviso was there.” [1996] Ch. 171, 182 and 184.
46 [1995] 2 A.C. 207. See also Carr-Glynn v. Frearsons [1999] Ch. 326; [1999] Conv. 399; and note 72.
47 The terminology of the Civil Procedure Rules 1998 is adopted in this article, even where the case precedes the Rules. “Plaintiffs” are referred to throughout as “claimants”.
48 [1999] 1 W.L.R. 727. Simon Brown and Mummery L.JJ. and Sir Christopher Slade.
49 [1999] 1 F.L.R. 1182. Hirst, Mummery and Buxton L.JJ.
50 There was evidence of conversations which took place both before and after the will was executed that the testatrix had a clear and settled intention that Bobbie Walker should inherit the house.
51 Judge Perrett Q.C., in the Birmingham County Court.
52 [1999] 1 W.L.R. 727, 736F.
53 7 3 7A.
54 736G; and see note 50.
55 738C.
56 738D.
57 739C.
58 At 743H. Mummery L.J. took a different approach: “For the reasons given by Sir Christopher Slade I agree that the judge was entitled to find on the evidence that [the solicitor] prepared the draft will in accordance with the instructions given to him by the testatrix …”. (741C) But Sir Christopher Slade had not given reasons for thinking that the trial judge was entitled to find on the evidence that the solicitor had prepared the draft will in accordance with the testatrix's instructions.
59 Simon Brown L.J., while agreeing with Sir Christopher Slade and Mummery L.J., confined his judgment to the second ground on which the appeal failed i.e., the failure to mitigate the loss by seeking rectification. Mummery L.J., by contrast, indicated that the mitigation point did not arise for decision because he held that the solicitors had not breached any duty of care owed to the claimant.
60 Quaere whether Bobbie Walker would have a claim in negligence against his own solicitors who advised him to bring negligence proceedings against the will draftsman rather than make an application for rectification.
61 See Pilkington v. Wood [1953] Ch. 770, 777 (Harman J.).
62 Sir Christopher Slade at 739C was of the opinion that, if the claimant had a valid claim in negligence, then a fortiori he would have had a good rectification claim because “proof of the factors necessary to ground a claim for rectification would not ipso facto establish negligence on the part of [the solicitor]”. It has already been submitted that every rectification claim must necessarily amount to an allegation of negligence, although the converse is not true: not every negligence claim will involve a rectifiable mistake.
63 Sir Christopher Slade said, “… I do not think that the law should encourage the bringing of actions against solicitor draftsmen in such circumstances”. (739E) As Mummery L.J. suggested, double recovery (by friends and family) leads to “… a possibility of abuse …”. (742D) Simon Brown L.J. included the following passage towards the end of his judgment “Where, as here, there is always the risk of a family manufacturing a negligence claim in order to enhance the value of the estate from which the family will benefit at the expense of the solicitor, the court is justified in requiring the claimant instead to pursue his remedy of rectification. I hasten to say that there has been no suggestion whatever in the present case that this claimant or his witnesses have been guilty of any such deceit. I make the point merely to indicate why the situation here is, in a number of respects, so very different from the norm”. (744E-F).
64 The duty of care is owed by all those engaged in the drafting of wills for profit, not just solicitors: Esterhuizen v. Allied Dunbar [1998] 2 F.L.R. 668.
65 For recent examples of this, see Corbett v. Newey [1998] Ch. 57 and Corbett v. Bond Pearce [2001] 3 All E.R. 769.
66 Walker v. Medlicott differed from Ross v. Caunters [1980] Ch. 297, White v. Jones [1995] 2 A.C. 207 and Carr-Glynn v. Frearsons [1999] Ch. 326 because in none of those cases would the claimant have had a remedy if the claim in negligence had been denied. See also Gorham v. British Telecommunications Plc [2000] 1 W.L.R. 2129, where the Court of Appeal held that an insurance company advising a customer on pensions and life cover owed the customer's dependants a duty of care not to give the customer negligent advice which adversely affected their interests as he had intended them to be.
67 In Chittock v. Stevens ([2000] W.T.L.R. 643) the judge (D. Donaldson Q.C., sitting as a deputy High Court judge) held that the guidelines set out by Megarry V.-C. in Re Salmon ([1981] Ch. 167) as being relevant to the decision whether the time-limit for making an application under the Inheritance (Provision for Family and Dependants) Act 1975 should be extended were capable of being transposed to applications under section 20(2) of the Administration of Justice Act 1982 to seek rectification of a will out of time. In applying those guidelines, the judge held that it was just and proper that time should be extended in a case where a will had been negligently drafted by a solicitor, who had omitted the clause leaving the testator's estate to his wife if she survived him for one month (which she did). The wife had initially decided not to apply for rectification because she believed that the matrimonial home was in joint names and therefore passed to her by survivorship. This turned out to be a mistake: the home was, in fact, in the testator's sole name. The judge was particularly swayed by the fact that the assets had not been distributed on the faith of the will as unrectified. This factor outweighed the fact that, in all probability, the widow had a good claim in negligence against the solicitor who drafted the will.
68 See Section III above.
69 An example of the problem for the claimant is provided by the facts of Horsfall v. Haywards [1999] 1 F.L.R. 1182, which will be considered in the next section.
70 Sir Christopher Slade at 738D.
71 Who may, themselves, be, or include, the personal representatives.
72 The damages could be substantial. In Horsfall v. Haywards (see below), the solicitors were ordered to pay damages of £87,503.17 for professional negligence i.e., the value of the beneficial interest in remainder in the property.
73 [1999] 1 F.L.R. 1182.
74 The house had originally been vested in the testator and his wife as beneficial joint tenants. At the same time as the testator had executed his will, the wife had executed a deed of gift of her beneficial interest in the house to her husband.
75 The widow was a Canadian and had now returned to Canada.
76 Evans-Lombe J. (who had also decided Wordingham—see note 38 above).
77 Who had also acted for the solicitor in Medlicott..
78 Who had also sat in Medlicott..
79 The widow indicated that she would challenge the deed of gift (see note 74) on the basis that she had not received independent legal advice, and would also seek relief under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that the testator's will had not made reasonable financial provision for her. The solicitors argued that these possible claims by the widow should reduce the damages payable to the nieces. The court of Appeal rejected this argument on the basis that such claims were entirely speculative: and the damages awarded were of an amount equal to the remainder interest in the house which the nieces had lost.
80 The defendant solicitors in Haywards began by denying negligence, but, by the time the action came on for trial, they admitted that they had acted in negligent breach of duty. The solicitor in Medlicott never admitted negligence, but it has been explained above that if (as the court of Appeal thought) he misunderstood the testatrix's instructions, he must have been negligent too.
81 In the recent case of Grattan v. McNaughton [2001] W.T.L.R. 1305 a widow brought separate negligence and rectification proceedings and failed in both; (she succeeded in a claim for family provision). This is consistent with the approach being suggested here.
82 Whether the mistake in Haywards could be classified as “clerical” would depend both on a close examination of the facts, and on how liberal the court was prepared to be in its construction of section 20 of the Administration of Justice Act 1982.
83 As the solicitors appear to have done in Wordingham and Segelman (see above).
84 A drafting error, which can be cured by construction, creates no real problem.
85 The beneficiaries named in the will will receive a windfall in the sense that they retain gifts which the testator did not intend them to have. This is what happened in Corbett v. Newey (see note 65) and, it is suggested, Medlicott..
86 The application would not have been made had the draftsman—who has now been found to be negligent—admitted his negligence in the first place.
87 This is what happened in Wordingham and Segelman..
88 He will, of course, also obtain his costs in the negligence proceedings themselves.
89 The beneficiaries named in the will lose their windfall benefit in this case.
90 In this case the beneficiaries named in the will retain the gifts which the testator intended them to have.