Analysis
Mr Bracey passed away on 27 May 2018, leaving a will dated 31 July 2015. Under that will, Mr Bracey appointed the second defendant as his executrix and trustee. The grant of probate issued on 16 March 2020 to the second defendant. Mr Bracey had been predeceased by his wife, who, like Mr Bracey himself, had been unwell at the time at which Mr Bracey had executed his will. The case related to a dispute between Mr Bracey’s son (the claimant) and his daughter (the first defendant) concerning the proper construction of the will and whether it should be rectified.
The first issue was whether a specific gift made by Mr Bracey of his residence at the time of his death took effect in favour of the claimant, or failed such that the property fell into residue. The relevant clause began by defining several terms, including the phrase ‘Trust Period’, which was defined as meaning ‘the period between [Mr Bracey’s] death and the death or earlier remarriage of [Mr Bracey’s wife]’. Immediately following the definitions was a sub-clause, (b), providing that if Mr Bracey’s wife should survive him, the property would be given to his trustees to hold on trust for his wife. A later sub-clause, (h), provided that when the trust period ended, his trustees should hold any property falling within the clause for the claimant.
For the claimant it was contended that (h) came into effect independently, and that the trust period ended with Mr Bracey’s own death so that from that date the trustee held the property for the claimant. (h) was not drafted so as to take effect only where (b) took effect. Clear words would be required before one clause in a will is construed as subject to another, and that the relevant clause appears later than another is not enough for this purpose. There was no logical problem with the ‘trust period’ under the will having begun prior to Mr Bracey’s death (on the earlier death of his wife) and having come to an end on his own death, and even had this been problematic, the ‘trust period’ could have commenced and ended on Mr Bracey’s death, having a ‘zero value’. In particular, as defined, the ‘trust period’ did not presuppose the existence of a trust. It would be deeply odd if Mr Bracey had intended that whether the claimant ultimately ended up receiving the property depended on whether his wife predeceased him, and it would be proper to adopt a perhaps unobvious construction to avoid that result. For the first defendant it was contended that (h), unlike (b), did not make any gift of property, and as such it was nonsense to say that (h) could operate independently. Moreover, the trust period had to start with the death of the testator, since the will would have no effect before that date, and must have some positive length thereafter. A ‘zero period’ could arise as a matter of mathematical theory, but not in real life.
For the claimant it was argued, in the alternative, that the relevant clause would be ambiguous on its face such that external evidence of the testator’s intention should be admitted under s21 of the Administration of Justice Act 1982 (the 1982 Act) to resolve the ambiguity. That evidence showed (as was not disputed) that the testator intended the property to be given to the claimant, subject only to the life interest for Mr Bracey’s late wife. For that reason, any ambiguity should be resolved in favour of the interpretation that resulted in the claimant receiving the property. Finally, in the further alternative, the claimant contended that, insofar as the will was not construed so as to achieve that result, its failure to do so resulted from a clerical error in omitting to include a gift to the claimant that took effect irrespective of whether Mr Bracey’s late wife predeceased Mr Bracey (or identified words which would have effectively provided for such) and that the will should be rectified under s20 of the 1982 Act accordingly. For the first defendant it was argued that the relevant failure was not a ‘clerical error’ since it was a failure to choose words which would carry into effect the testator’s intentions, notwithstanding that the draftswoman understood those intentions.
Held:
On its proper construction, (h) took effect independently of the other sub-clauses and the trust period ended at the date of the testator’s death. Therefore, the property was left to the claimant. There was nothing illogical in a will identifying a period of time between two events, the timings of which were, at the time of execution of that will, unknown, and one of which was the testator’s own death. Where the other event occurred first, that period would start before the testator’s death, and again there was no logical problem with this. There was also no problem with there being a notional period of a ‘zero duration’, in the event that the period had to run from the death of the testator, or the period having a negative value in circumstances in which the other event had occurred first. This conclusion was reached simply by applying the natural and ordinary meaning of the words used in the will, but was reinforced by ‘internal’ evidence comprising the will’s overall purpose, its other provisions, common sense and the facts known or assumed by the parties at the time, in particular that both the testator and his wife were then unwell and that there could be no clear expectation of one surviving the other.
If the judge was wrong on this point, in any event he would have found the provisions to be ambiguous between the interpretation he adopted and that contended for on behalf of the first defendant, and hence would have admitted external evidence of the testator’s intentions. Such evidence clearly showed that Mr Bracey’s intention had been for the claimant to receive the property eventually and so, admitting such evidence, the will would be construed so as to achieve that result.
Finally, if the judge was wrong on both of the above points, he would have rectified the will to achieve that result. The failure of the draftswoman was ultimately to include a simple set of words making it clear that the property would go to the claimant in the event that Mr Bracey’s wife predeceased him. The words of s20 of the 1982 Act had to be given as wide a meaning as they could possibly allow, as clarified in Marley v Rawlings. As such, this was a case of ‘clerical error’ within the meaning of that Act, and the will would be rectified.
JUDGMENT PHILIP MOTT QC: [1] Alan George Bracey (‘the Testator’) died on 27 May 2018. Probate was granted to the Second Defendant on 16 March 2020 in relation to his Will dated 31 July 2015 (‘the Will’). This action involves a dispute between his son, the Claimant, and his daughter, the First Defendant, about that …Continue reading "Bracey v Curley & anr [2022] WTLR 419"