Brooke & Ors v Purton & Ors

A will is construed by identifying the testator’s intention from the words used, read in their documentary and factual context. Where the statutory conditions apply, Administration of Justice Act 1982, section 21 permits extrinsic evidence, including evidence of actual intention, to assist interpretation. The concept of ambiguity should be interpreted broadly.

Under section 20 of the Act, rectification is available where a will fails to carry out the testator’s intentions because of clerical error or failure to understand instructions. “Clerical error” has a wide meaning. Rectification is unnecessary where proper construction already gives effect to the testator’s intention.

The claimants, executors and trustees of the estate of Steven Huntley, sought construction and rectification of a discretionary trust clause in his will. The clause had been copied from a precedent designed for a married testator and, as drafted, produced a nil rate sum of zero or less. This frustrated the apparent intention to place business assets and a top-up of other assets into a discretionary trust for the beneficiaries.

The court considered whether the clause could be construed to give effect to that intention and, if not, whether it should be rectified under sections 20 and 21 of the Administration of Justice Act 1982. A further request concerning the inheritance-tax provision in clause 6.2.3 was raised only during the hearing.

1. Construction. The court applied the approach stated by the Supreme Court in Marley v Rawlings [2014] UKSC 2: a will is interpreted like other documents, by identifying the meaning of its words in the light of the document’s purpose, provisions, known or assumed circumstances and common sense, while excluding subjective intention except where section 21 applies.
2. Reading clause 6 as a whole, clauses 6.2.1 and 6.2.2 showed that the intended operation was to place business assets into the trust first and then top up to the nil rate band. Clause 6.1.3.1, which deducted other chargeable transfers in calculating the nil rate sum, was inconsistent with that purpose and was to be treated as omitted. The trust therefore received the relevant business assets without limit, together with a top-up of other assets to the nil rate band.
3. Extrinsic evidence. Section 21(1)(c) was engaged because, after considering the surrounding circumstances, the wording remained ambiguous in the statutory sense. The provision should be interpreted broadly. Evidence of the testator’s intention, including the will summary and evidence of instructions, reinforced the construction reached.
4. Rectification. The statutory regime in section 20 was the applicable route. Following Marley v Rawlings and drawing assistance from Re Segelman [1996] Ch 171, the court held that “clerical error” has a wide meaning and can include leaving an inappropriate provision in a will without applying one’s mind to its significance. However, rectification was unnecessary because construction already produced the intended meaning.
5. The court made no order concerning clause 6.2.3. The issue had not been properly raised, evidenced or addressed, and no application for an extension of time had been made. A future application was not precluded, but would require proper evidence and, if based on rectification, a properly founded application under section 20(2).

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