Kell v Jones & ors

Analysis

Mrs Joan Pittaway (the testatrix) made a will dated 15 December 2010 and died on 21 January 2011. Her will appointed Mr Kell as one of two executors.

Clause 4 of her will left pecuniary legacies to 15 named relatives and four charities (with £7500 in total left to charity). Clause 6 of the will left her residue to be paid ‘equally among such of the beneficiaries named in clause 4 as shall survive me and if more than one in equal shares’.

It was alleged that the testatrix wished her residue to be split only between family members and not the charities. The size of the estate meant that each charity’s share of residue that was in question was £25,000. The charities opposed rectification.

The will was drafted by a solicitor and replaced her 1992 will, which left the residue of her estate to four branches of her family.

At the meeting to take the will instructions the solicitor took with him a copy of the 1992 will. The testatrix also had her own copy of the 1992 will at the meeting, which she had annotated including crossing out all the names of the individuals in the residuary clause and amending the pecuniary legacies left to charity. She also added a note stating the proceeds from the sale of her jewellery was to be ‘added to her estate and equally shared by family named above’. She produced an envelope in the meeting on the back of which she had named 15 family members that formed part of her instructions.

The solicitor’s attendance note detailed that the testatrix stated that she wanted the residue to be split between the beneficiaries she had already named. The solicitor conceded that prior to discussing residue she had named both charities and individuals to him.

The solicitor’s evidence was that the testatrix meant beneficiaries to only mean the individuals named on the envelope and felt that as drafted the will gave effect to this as reference to ‘as shall survive me’ could only refer to human beneficiaries.

Held (refusing the rectification application):

1. (1) The testatrix’s reference to her jewellery meant that it was being added to her residuary estate and ‘the family named above’ were the family members on the envelope and that she wanted the 15 individuals to share her residue and no charities.
2. (2) Great weight could be placed on the solicitor’s evidence as an experienced wills solicitor whose sole purpose was to ascertain her testamentary intentions.
3. (3) There was also witness evidence that the testatrix planned to leave something to charity ‘but it will not be fat lot’ and it would have substantial change from the 1992 will for charities to be included in residue and both these points supported the solicitor’s evidence.
4. (4) Reference to beneficiaries does not just mean mortal beneficiaries and therefore the will did not give effect to the testatrix’s intentions.
5. (5) The solicitor knew what the testatrix wanted and drafted the will believing it achieved her wishes. The solicitor had given proper consideration and had applied proper thought nor were the words added in a somewhat mechanical way given that the solicitor wrote out the actual clause. There was no clerical error that would allow rectification.
6. (6) This was not a case of omission where again rectification would have been possible. The will could have been drafted many other ways to achieve the testatrix’s wishes and this was not a case where the will was not effective because particular words had been omitted from the final version.
7. (7) It is regrettable that because of the relevant statute and the court’s interpretation of that statute that the court was unable to fulfil the testatrix’s intentions.

JUDGMENT HHJ COOKE: [1] This is a claim for rectification of the will of Mrs Joan Pittaway. The will was dated 15 December 2010 and Mrs Pittaway died shortly after that, on 21 January 2011. [2] The claimant, Mr Kell, is one of the two executors named in the will and he is also a …

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