Interpretation or rectification --- when and how can the Court uphold an unclear Will according to the testator's intentions

In In the matter of the Estate of Florence Rosemary Harte (Deceased) ("Re Harte"), the English High Court had to decide when and how to interpret and rectify a Will to reflect the testator's true intentions. Re Harte affirmed the landmark Supreme Court case Marley v Rawlings in its intent-based approach to Will interpretation and rectification. The Judge also widened the definition of "clerical error" in in relation to Wills. 

Background

This case involved a dispute as to the meaning of Mrs. Florence Rosemary Harte's last Will. Mrs. Harte's Will and the Will of her husband, Mr. Patrick Joseph Harte, were in mirror terms and they gave instructions to their solicitor at the same time.  By the Wills they each gave all his/her personal property to first pay his/her debts, funeral and testamentary expenses. In event of the spouse surviving, all of the deceased's residuary estate was to pass to the spouse.  If the spouse died before the deceased, the residuary estate was to be distributed as various gifts made to other individuals and named charities. 

Mrs. Harte died 11 months after her husband. As per her Will, two solicitors were appointed as the executors of her Will. Whilst the overall meaning of Mrs. Harte's will was clear, Mrs. Harte's Will was poorly drafted.

Before making any distribution, the executors sought Courts as to the true meaning of Mrs Harte's Will, or alternatively, rectifying certain provisions of the Will.

Questions for the Court

The Court was called upon to decide the following questions:

1. Whether the residuary estate of Mrs. Harte's Will included real property;
2. Whether the term "one part" of Mrs. Harte's estate was equal to "one-tenth" of Mrs. Harte's estate;
3. Whether "Mewbury Hospital" was a reference to the "West Berkshire Community Hospital";
4. Whether the legacies to three of the five charitable beneficiaries should be distributed according to the correct charity numbers, despite the charities being incorrectly named;
5. Whether "West Berkshire Ambulance Hospital" referred to the "Thames Valley and Chiltern Air Ambulance Trust", which is a registered charity.

The Court's Power to Interpret or Rectify a Will

In the case, Judge Hodge QC summarized the law on the Courts' powers to interpret or rectify a Will.

In Marley v Rawlings, Lord Neuberger made clear that a Will was to be interpreted in the same way as any other document. It is possible to assist its interpretation by reference to, for example, what the testator told the draftsman or another person, or by what was in any notes he made, or earlier drafts of the Will, as evidence to the testator's actual intention.

Again in Marley v Rawlings, Lord Neuberger decided that a clerical error occurs, as a result of a slip of the pen or mis-typing, when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert. For the purposes of rectification, the Court has to be satisfied not just that the Will did not reflect the testator's intentions, but also it must know what the testator’s intentions were.  However, Lord Neuberger also recorded that there may be a wider meaning to the term "clerical error".

Judge Hodge QC, in the present case, found that a wider meaning of the term "clerical error" could be a mistake arising out of some office work of a relatively routine nature, such as preparing, filing, sending, or organizing the execution of a document.

Judgment

Applying Marley v Rawlings, Judge Hodge QC was satisfied that both Section 20 and Section 21 of AJA 1982 were engaged in the present case: the language of the Will was ambiguous; and the Will failed to carry out Mrs. Harte's intention as a result of either clerical mistakes or failures to understand Mrs. Harte's intention. As such, the Court could interpret the Will in light of the notes which were made by the Will’s draftsman and the instructions which were presented to him by both Mr. and Mrs. Harte. The Court was also prepared to rectify the Will to reflect Mrs. Harte's true intention. Therefore, the Court made the following declarations.

1. The Court was satisfied that Mrs. Harte intended to include real property in her residuary estate. Although the Will made no reference to the real property and the residuary was not defined, the Court found it would be surprising if Mrs. Harte did not intend her home to be included in the residuary because it was probably her most valuable asset. The Court held that the residuary estate was all of Mrs. Harte's personal and real property after paying her debts, funeral and testamentary expenses and inheritance tax.  

2. The use of two different terms, "one-tenth" and "one part", suggested different meanings. However, there were ten gifts and if "one part" was construed as "one-tenth" that would dispose of the entire residuary estate. Each gift was contained in one of the ten separable sub-clauses. The correct interpretation was that "one part" equalled "one-tenth".

3. The Court was satisfied that the charities were clearly misnamed. A gift to "Newbury Hospital" at a given address would be construed as a gift to the "West Berkshire Community Hospital" which was at that address and was colloquially referred to as "Newbury Hospital".

4. Similarly, various charitable beneficiaries were included with accurate registered charity numbers but incorrect names. The Court interpreted the gifts by referring to the charity numbers. Thus, "Macmillan Cancer Fund" was construed as "Macmillan Cancer Support", "Guide Dogs for the Blind" was construed as "Guide Dogs for the Blind Association" and "Guide Dogs for the Deaf" was construed as "Hearing Dogs for Deaf People".

5. The final gift was made to "West Berkshire Ambulance Hospital" which did not exist. There was little evidence available but the instructions from Mr. and Mrs. Harte in the draftsman's notes did refer to "Air Rescue/Ambulance – West Berks", relating to no other gift. The Court was satisfied that the Will contained either a clerical error or failed to convey Mrs. Harte's intentions. The Court was also satisfied that the testator intended to make a gift to the air ambulance service covering West Berkshire, being Thames Valley and Chiltern Air Ambulance. The Will was rectified so that the bequest to West Berkshire Ambulance Hospital should be paid to Thames Valley and Chiltern Air Ambulance Trust.

Comments

This case indicates that, although the Court by no means encourages carelessness, it is willing to look into the extrinsic evidence to find the original intentions of testators and uphold such intentions.

Charity beneficiaries in similar situations may seek the Court to re-construe or rectify the terms of the Will in order to remedy the unclear drafting of some Wills.

Testators shall not only make efforts to ensure the drafting of their Will reflects their wishes, but also properly record their instructions so their true intentions can be put in evidence later, if necessary.

If you wish to discuss, please contact Richard Norridge or Joanna Caen of our Private Wealth and Trusts team or your usual Herbert Smith Freehills contact.