Bell v Georgiou & Anor

Rectification of a will requires proof of the testator’s intention, that the will fails to give effect to it, and that the failure resulted from a clerical error or from a draftsman’s failure to understand instructions. The claimant bears the burden of proof. On an application for permission to appeal, factual findings will not ordinarily be disturbed unless the judge’s reasoning is shown to be perverse or unsupported by the evidence. A court cannot infer an intended additional legacy merely from tax calculations or apparent inconsistency in the dispositions.

The claimant sought permission to appeal orders made by Blackburne J on claims to rectify his late mother’s will under section 20 of the Administration of Justice Act 1982. The will gave him £150,000 and left the residue to the Royal Air Force Benevolent Fund. He argued that his mother intended either to give him a further sum equal to the nil rate band or to give the Fund only £11,000, leaving the balance on partial intestacy.

The judge rejected both alternatives. The central issue was whether the evidence and handwritten notes established the necessary testamentary intention and drafting error.

1. Permission refused. The Court of Appeal held that there was no real prospect of successfully challenging the judge’s findings.
2. Rectification under section 20 of the Administration of Justice Act 1982 requires examination of: the testator’s intention concerning the relevant dispositions; whether the will fails to give effect to that intention; and whether the failure resulted from a clerical error or failure by the person preparing the will to understand the testator’s instructions. This formulation was taken from In re Segelman (Deceased) [1996] Ch 171.
3. The claimant bore the burden of proving the alleged intention on the balance of probabilities. The handwritten notes expressly identified £150,000 as the gift to the claimant and did not establish an intention to give him the nil rate band as an additional legacy. Nor did they establish an intention to limit the Fund’s gift to £11,000.
4. On appeal, it was insufficient to identify evidence pointing in the opposite direction from the judge’s conclusion. The applicant had to show that the judge’s reasoning was perverse. The possibility that an investment clause had been deleted from the draft will was speculative and could properly be ignored.
5. The alternative argument based on partial intestacy also had no real prospect of success. The judge was entitled to interpret the reference to the balance of £11,000 as referring to the balance produced by the testatrix’s calculations, rather than as a fixed legacy.
6. The extension-of-time application required no order. The applications were refused.

• Court of Appeal (Civil Division): Permission to appeal from orders of Blackburne J dated 25 May and 26 June 2002 was refused. The application for an extension of time was not determined because permission was refused.