Rainbird & anr v Smith & ors [2012] EWHC 4276 (Ch)

Analysis

Doreen Gertrude Leader (the deceased) executed a will leaving the residue of her estate to her three daughters on the following terms:

‘I give my estate (including any property over which I may have general power of appointment or disposition by will) to my trustees upon trust…

(c) subject thereto hold the residue remaining and the income thereof (“my residuary estate”) UPON TRUST for such of them my daughters, the said JACQUELINE ANNE RAINBIRD JANET JONES of… and GWENDOLINE SMITH of… as shall survive me and if more than one in equal shares absolutely.’

Janet Jones (Janet) predeceased her mother leaving two children of her own. Section 33 of the Wills Act 1837 (WA 1837) was not expressly excluded in the will. Jacqueline Rainbird and John Coventry, as executors, asked the court to rectify the will under s20 of the Administration of Justice Act 1982 on the grounds that the will failed to carry out the deceased’s intentions as a result of a clerical error. The defendants to the action were the deceased’s third daughter and Janet’s two daughters.

On considering the matter the judge felt that it was first necessary to construe the will before coming to the question of rectification. It was necessary to consider whether sufficient contrary intention had been demonstrated in the will such that the operation of s33 WA 1837 was excluded and the residuary estate spilt only between the two surviving daughters.

Held:

1. (1) From the wording of the residuary gift it was clear that the deceased intended to leave her estate only to her daughters who survived her. If she had meant to include provision for the children of a predeceasing daughter, the gift would not have been qualified with ‘… such of them as shall survive me’. Instead she would have made the gift ‘to my daughters, A, B and C’.
2. (2) The use of the words ‘and if more than one in equal shares’ demonstrated that it was not certain what the exact division would be at the date of her death.
3. (3) The construction of a will should depend only on the document before the court and the wording and context of that. Ling v Ling [2002] was thereby distinguished.
4. (4) The wording was clear and unambiguous to the judge; however if he was wrong and the wording was ambiguous, s21 of the Administration of Justice Act 1992 could be relied on to admit extrinsic evidence of whether there was a contrary intention for the purposes of s33 WA 1837. The approach in Hawkins on the Construction of Wills, which states that the ambiguity must be apparent from the will itself and not created by extrinsic evidence, was not agreed with by the judge. Section 21 of the Administration of Justice Act 1982 could be looked to and extrinsic evidence could be the cause of ambiguity. However in this case the extrinsic evidence supported a contrary intention to the application of s33 WA 1837.
5. (5) There had been no clerical error or failure by the solicitor to understand the deceased’s instructions, so rectification was unnecessary.

JUDGMENT MR JOHN BALDWIN QC: [1] The claimants are the trustees of the will of Doreen Gertrude Leader, who died in 2010, and bring this action seeking rectification of the will pursuant to the provisions of s20 of the Administration of Justice Act 1982, on the grounds that it fails to carry out the deceased’s …

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