Parkinson v Fawdon

In a probate action, the court may construe a will to identify the persons entitled to a grant of probate. For that purpose, the court may consider the persons and facts known to the testator when the will was made, together with substantially contemporaneous important documents. Where a description contains a misdescription, the court may identify the intended person by construing the description in its factual context. This includes correcting an erroneous address where the surrounding evidence establishes the identity intended by the testator.

The claimant sought rectification of the deceased’s will under section 20 of the Administration of Justice Act 1982. Before that issue could be tried, the defendant counterclaimed for construction of the will and a declaration identifying the person described as “Mark Parkinson of 215 Ditching Road Brighton”. The essential facts were agreed, and the counterclaim was determined on written evidence. The central issue was whether that description referred to Justin Parkinson.

1. The court had jurisdiction in the probate action to construe the will so far as necessary to identify the persons entitled to be constituted as personal representatives. Construction was a necessary preliminary to any application under section 20 of the Administration of Justice Act 1982.
2. In construing the will, the court could take into account all persons and facts known to the deceased when the will was made, and any substantially contemporaneous document of an important character showing whom the testator intended to identify. The principle was supported by Re Resch’s Will Trusts [1969] 1 AC 514.
3. The address in the will was erroneous: no person answering the description lived at “Ditching Road”, which itself was a mistake for “Ditchling Road”. The mirror will and the surrounding family circumstances showed that the reference was intended to identify a living male member of the relevant family. The description most naturally identified the claimant, Justin Parkinson, as a great-nephew who could properly be described as a nephew. The reasoning in Re Ofner [1909] 1 Ch 60 supported construing the description by reference to the person known to and intended by the testator.
4. The will was presumed formally and substantially valid. The court declared that “Mark Parkinson” meant Justin Parkinson, pronounced for the validity of the will, directed that probate issue to the claimant and defendant, and ordered that any caveat cease to have effect. No order was made on the claim and the trial was vacated.

First-instance decision. The judgment records that the claimant had commenced rectification proceedings, but no earlier judgment or appeal is stated.