Analysis
Kiritkumar Mahendersinh Mahida (testator) and his wife, the defendant, owned (inter alia) freehold property at 148-152 Leytonstone Road London as beneficial joint tenants. They were, however, separated when the testator made his last will (will) on 17 July 2002. After appointing the first and second claimants his executors and trustees, the testator gave certain property to his brother, the third claimant, and his three sons, the fourth to sixth claimants. In particular, by clause 3(c) he gave them an interest in the property at Leytonstone Road, but unfortunately expressed the specific devise in terms as ‘one half of my share’. The testator then gave the remainder of his real and personal property to the defendant. A notice severing the joint tenancy, which the testator had signed, was served on the defendant and subsequently registered at the Land Registry. After the testator died on 2 May 2006 the defendant unsuccessfully challenged the will on the grounds of lack of testamentary capacity and want of knowledge and approval. The court pronounced for the will on 3 December 2010 and probate was granted on 16 December 2011. As it stood, clause 3(c) of the will only gave the third to sixth claimants one half of the testator’s beneficial interest in the property at Leytonstone Road and the other half would pass under the terms of the residuary gift to the defendant. On 12 June 2012 proceedings were issued for rectification of the will by substituting the words ‘my one half share’ for the words ‘one half of my share’ in clause 3(c). The defendant filed a defence and counterclaim but this was subsequently struck out and at the hearing she neither attended nor adduced any evidence in opposition to the rectification claim.
Held (allowing the claim):
The court had jurisdiction to make a rectification order if it was satisfied that the will was so expressed that it failed to carry out the testator’s intention as a consequence (in this case) of a clerical error under s20(1) of the Administration of Justice Act 1982. This involved a three stage process of:
- (i) identifying what the testator intended;
- (ii) confirming that the provision in question failed to carry out the testator’s intention; and
- (iii) determining whether that failure was as a consequence of a clerical error. In clause 4 of the will the testator directed his executors and trustees to sell ‘my share’ in the property at Leytonstone Road and further directed that the defendant should not be entitled to ‘my share’ in the property at Leytonstone Road. That was plainly inconsistent with the effect of clause 3(c). Moreover, an attendance note by the solicitor who took instructions from the testator clearly stated that he wanted to give his half share in the property at Leytonstone Road to his brother and three children. Accordingly, there was no doubt that the testator intended the whole of his beneficial interest in the property at Leytonstone Road to pass to the third to sixth claimants and not to the defendant. Equally, it was clear that clause 3(c) did not, as it stood, have that effect due to a ‘clerical error’, which, being interpreted more widely than the ‘slip rule’, meant an error in the process of recording the intended words of the testator in the drafting of the will. It followed that an order would be made rectifying the will to substitute the words ‘my one half share’ for the words ‘one half of my share’ in clause 3(c).
Continue reading "Joshi & ors v Mahida [2013] EWHC 486 (Ch)"