17 March 2021 | Comment | Article by Sarah Bolt

Barrett v Hammond [2020] EWHC 3585 (Ch): Will rectified avoiding partial intestacy

Dr Robert Black died in February 2018. Prior to his death, he made a will in 1998 and two codicils in 2005 and 2016. Dr Black and his wife had made mirror wills at the same time, but she had died before him in 2013.

Under the terms of his first will and first codicil, Dr Black had split his residuary estate into 52 equal parts with six individuals receiving six parts each and eight charities receiving two parts each. Unfortunately, the Executor of Dr Black’s estate was in doubt as to the effects of his will and first codicil, which had both been prepared by solicitors, as the first codicil removed the gift to two individuals (12 parts) and added gifts to two charities (four parts in total). Dr Black’s first codicil revoked 12 parts, but only granted an additional four. No provision was made for the remaining eight parts of his estate.

The Executor had initially sought determination of the true construction of the will and first codicil. In July 2019, the Court determined that under a true construction, a partial intestacy arose in respect of eight parts of the estate, for which no provision had been made. The Executor then sought to proceed with a claim for rectification of Dr Black’s will under Section 20 of the Administration of Justice Act 1982 – rectification would be permitted where a will fails to carry out the testator’s intentions due to a clerical error or there was a failure to understand the testator’s intentions. There were 31 defendants to the claim, being those parties with an interest under the will and codicil and those who would have an interest under partial intestacy. Only one of the defendants opposed the rectification application, but that defendant withdrew her evidence shortly before the final hearing and took no further part in the proceedings.

The Court held that the handwritten notes and documents evidenced a clear intention that Dr Black and his wife intended the number of parts which were available would match the number of gifts that were to be made. If had been done correctly, there would be no balance to fall into a partial intestacy. Taken together the documents showed that Dr Black had not intended for a partial intestacy to happen. The Court concluded that a failure to reconcile the figures was a clerical oversight by the solicitors who had prepared the wills and codicils. The Court decided that it had the power to rectify the wills, including the first codicil, to give effect to Dr Black’s intention so that the estate was divided into 44 parts rather than 52 parts.

In view of the clerical oversight, this may give rise to a professional negligence against the firm of solicitors in respect of the costs paid from the estate and/or reduction of the residuary estate to the beneficiaries as a result of needing to undertake the construction and rectification proceedings.

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