Bimson, Re the Estate of

Under Administration of Justice Act 1982, section 20(1), a will may be rectified where it fails to give effect to the testator’s intentions because of a clerical error or failure to understand instructions. A clerical error is not confined to transcription. It may include wording introduced, or left undeleted, because the draftsman failed to consider its significance or effect. An omission may particularly readily qualify. The court must identify the testator’s intention, determine whether the will fails to implement it, and establish the relevant error. Where those requirements are met, the court may amend the wording so as to give effect to the intended testamentary scheme.

The deceased’s will gave her husband a life interest in the residue but excluded him from the defined class of “Beneficiaries” in whose favour the trustees’ overriding powers, including powers to advance capital, could be exercised. Her sons and grandchildren did not oppose the application, and the grandchildren were represented by a litigation friend.

The evidence showed that the deceased and her husband had intended a life interest with the possibility of advancing capital to the surviving spouse. The omission resulted from the drafting of the will. The issue was whether the omission was a clerical error within section 20(1)(a) of the Administration of Justice Act 1982, and, if so, how the will should be rectified.

1. The application succeeded. The court ordered rectification of the will and directed that Luke represent the interests of unborn or unascertained beneficiaries who might subsequently become interested under the residuary trusts.
2. Section 20(1) requires the court to determine: the testator’s intentions concerning the dispositions; whether the will is expressed so that it fails to carry out those intentions; and whether that failure resulted from a clerical error or a failure to understand instructions.
3. The court adopted the guidance in Re Segelman (deceased) [1996] Ch 171. The expression “clerical error” is not limited to a mistake made while transcribing intended words. It may include a provision introduced, or left undeleted, because the draftsman failed to apply his mind to the wording’s significance or effect.
4. The court also considered Wordingham v Royal Exchange Trust [1992] Ch 412 and Pengelly v Pengelly [2008] Ch 375. The latter supported the conclusion that a mistaken omission may readily be characterised as clerical.
5. The evidence established that the deceased intended her husband to benefit from the overriding powers during his lifetime. His omission from the definition of “Beneficiaries” was an inadvertent drafting slip and therefore a clerical error within section 20(1)(a). The court had jurisdiction to correct it.
6. The appropriate correction was to amend clause 3.4 to include David among the Beneficiaries and to insert “my” before “remoter descendants”. The solicitors agreed to bear the costs of the application.

Not stated in the judgment.