Joshi & Ors v Mahida

Rectification under Administration of Justice Act 1982, section 20, requires the court to identify the testator’s intention, determine whether the will fails to give effect to it, and decide whether the failure resulted from a clerical error or from failure to understand instructions. A clerical error is not confined to a literal slip of the pen. It may arise from an inadvertent error in recording instructions during drafting or transcription. Section 20 does not cover a mistake where the draftsman understood the instructions but applied the law incorrectly. Where the evidence clearly establishes the intended disposition and the error is clerical, the court may rectify the will to give effect to that intention.

The claimants sought rectification of the deceased’s will under section 20(1)(a) of the Administration of Justice Act 1982. The will gave the testator’s brother and his sons one half of the testator’s share in certain jointly owned properties, but a separate clause indicated that the whole of his share was intended to pass to them and that his widow was to receive no interest in those properties.

The widow’s defence and counterclaim had been struck out. She did not attend the rectification hearing or adduce evidence. The issue was whether the inconsistency resulted from a clerical error within section 20(1)(a), and whether the statutory time limit in section 20(2) was satisfied.

1. Statutory approach. Following Re Segelman [1996] Ch 171, the court identified three questions: what the testator intended; whether the will failed to carry out that intention; and whether the failure resulted from a clerical error, failure to understand instructions, or another cause.
2. Meaning of clerical error. The expression is construed more broadly in this context than the ordinary slip rule under Part 40 rule 12 of the Civil Procedure Rules 1998 or section 57 of the Arbitration Act 1996. It includes an error in recording the testator’s intended words during drafting or transcription. Wordingham v Royal Exchange Trust Co Limited [1992] Ch 412 and Re Segelman [1996] Ch 171 illustrate that an omitted or retained provision may constitute a clerical error.
3. Limit of the jurisdiction. Section 20 does not extend to words which the draftsman deliberately introduced after properly understanding the instructions, but which failed to achieve the intended result because of a failure to understand the law.
4. Application and order. The contemporaneous evidence established that the testator intended his whole share in the relevant properties to pass to his brother and nephews. The words in clause 3(c) resulted from an inadvertent drafting slip, while clause 4 confirmed the intended disposition. The statutory six-month period was satisfied. The will was rectified by replacing “one half of my share” with “my one half share”. There was no order as to costs.

First instance decision. No prior appellate decision is stated in the judgment.