Clarke v Brothwood & Ors

Rectification of a will under Administration of Justice Act 1982, section 20, is available where the will fails to give effect to the testator’s intentions because of a clerical error or a failure to understand instructions. A clerical error is not confined to a solicitor’s inaccurate transcription of words actually used by the testator. It may include introducing or retaining words without applying the mind to their significance or effect. The court must identify the testator’s intentions, establish that the will fails to carry them out, and determine whether the failure resulted from one of the statutory causes.

The claimant sought rectification of the deceased’s will under section 20 of the Administration of Justice Act 1982. The will allocated only 40 per cent of the residuary estate, although the evidence showed that the testatrix intended to dispose of the whole residue, giving 20 per cent to each of four godchildren.

The principal issue was whether the error fell within the statutory meaning of a clerical error. A subsidiary issue was whether the intended distribution could be established with sufficient certainty.

1. Statutory questions. The court adopted the three-stage approach described in Re Segelman [1996] Ch 171: identify the testator’s intentions; determine whether the will fails to carry them out; and determine whether that failure resulted from a clerical error or a failure to understand instructions.
2. Intentions established. The testatrix plainly did not intend to die partially intestate. The fact that the four godchildren were each to receive 20 per cent supplied the remaining 80 per cent of the residue. The proposed distribution was therefore sufficiently clear.
3. Meaning of clerical error. The narrow construction advanced by the defendants was rejected. Even if the testatrix had herself said “one-twentieth” and the solicitor had faithfully recorded it, rectification could be ordered if the draftsman had failed to apply his mind to the effect of the provision. The jurisdiction extends to a provision introduced or retained per incuriam, without advertence to its significance or effect.
4. Application. An experienced probate solicitor applying his mind to the will would have noticed that 60 per cent of the residue was undisposed of. The failure to notice that defect was therefore a clerical error within section 20(1)(a), whether the original mistake lay with the testatrix or the solicitor.
5. The will was ordered to be rectified so that the charities received 10 per cent each and the four godchildren received 20 per cent each.