Analysis
By clause 3 of his will dated 19 August 2011 (2011 will) Eric Arnold (estator) gave his beneficial half share of 1 Sherbuttgate Road, Pocklington (house fund) to the claimants (trustees) upon trusts that conferred a life interest on the defendant with remainder ‘upon the trust hereinafter declared in regard to my residuary estate’. The residuary estate was given to the defendant in absolute terms with a gift over, if she failed to survive the testator, to such of her children and her daughter in law as should be living at his death and if more than one in equal shares absolutely. The testator died on 21 December 2012 and the claimants proved the will on 11 April 2014. The defendant, who had dementia, was represented by a litigation friend. The drafting of clause 3 was in stark contrast to the corresponding provision in the testator’s previous will made in 2006 (2006 will). By clause 3 of the 2006 will the trustees were directed to hold the house fund, after the death of the defendant, for such of her children as should be living at her death and if more than one in equal shares absolutely. The residuary estate was directed to pass to the defendant in absolute terms. It appeared from the file that, when the solicitors were drafting the 2011 will, a copy of the 2006 will was annotated in pen and headed ‘2006 version to amend’ and the provision for the house fund to pass to the defendant’s children was struck through. The draftsman could not recall receiving instructions from the testator to alter the terms of the 2006 will so as to confer, in such cumbersome terms, on the defendant what was tantamount to an absolute interest in the house fund. If this has been the intention, it could have been achieved much simpler without the need for the retention of the house fund. In the light of this, and in the context of the remainder of the will and contemporaneous correspondence, the draftsman gave evidence that the manuscript amendment that deleted the names of the beneficiaries was made in error. Consequently, the concluding provisions of clause 3 of the 2011 will did not reflect the intention of the testator that the house fund should pass on the defendant’s death to her children and her daughter in law in equal shares. The claimants applied to the court for a declaration, as a matter of construction, that the house fund was held on trust for the defendant’s children and the daughter in law absolutely subject to the life interest of the defendant; alternatively, that the will should be rectified to achieve the same effect. Save for her absolute interest in the residuary estate, the defendant’s litigation friend made no opposition to the claim. For their part, the claimants did not press the suggestion that rectification or indeed construction of the will should be ordered in relation to the residuary gift.
Held (ordering rectification of the will)
As to the claim for construction, the court was concerned to find the meaning of the words used in the will in the light of (a) their natural and ordinary meaning, (b) the overall purpose of the document, (c) any other provisions of the document, (d) facts known to or assumed by the parties at the time of execution and (e) common sense. These were all objective matters. Direct evidence of subjective intention was, however, admissible where the language used was ambiguous. While it was argued that the words ‘upon the trusts hereinafter declared in regard to my residuary estate’ were ambiguous and could be construed as ‘the residuary fund as defined in clause 5‘, this was not the natural reading of the will. It was therefore doubtful whether it should be construed in this way. Alternatively, the evidence clearly demonstrated that because of a clerical error the will failed to carry out the testator’s intention and, accordingly, the 2011 will should be rectified so as to provide for the house fund to pass on the defendant’s death to her children and her daughter in law in equal shares absolutely.
MRS JUSTICE PROUDMAN: [1] This is a claim for the construction and/or rectification of the last will (the will) dated 19 August 2011 of Eric Arnold (the deceased) who died on 21 December 2012. Probate of the will was granted out of the District Probate Registry at Newcastle upon Tyne on 11 April 2014. [2] …Continue reading "Gledhill & anr v Arnold [2015] EWHC 2939 (CH)"