Slattery & Ors v Jagger & Ors

Where a will contains a meaningless or ambiguous clause because necessary words have been omitted, the court may use construction to supply the obvious omission, provided this does not rewrite or contradict the language used. In interpreting the will, the court applies the ordinary contextual approach applicable to documents and may admit direct evidence of the testator’s intention where Administration of Justice Act 1982, section 21 applies.

If construction cannot give effect to the testator’s intention, rectification under section 20 remains available where the testator’s intention is proved, the will fails to give effect to it, and the failure resulted from clerical error. Omitting words through dictation or typing may constitute clerical error.

Albert Jagger’s 2011 will purported to give his beneficial share in the matrimonial home but did not identify the beneficiary. The will also contained other obvious drafting errors. His executors and widow claimed that the omitted words were intended to give the share to Mrs Jagger.

The claim sought a declaration on construction or, alternatively, rectification under section 20 of the Administration of Justice Act 1982. The defendants disputed Mr Jagger’s intention and argued that the omission was not a clerical error. The central issues were whether clause 3 could be construed as a gift to Mrs Jagger and, if not, whether it should be rectified.

1. Construction. Clause 3 was meaningless or ambiguous because it failed to identify the object of the gift. Applying the approach in Marley v Rawlings [2014] UKSC 2, a will is interpreted by identifying the meaning of its words in their documentary and factual context. Under section 21 of the Administration of Justice Act 1982, evidence of the testator’s actual intention was admissible.
2. The court could supply the obvious omission by reading the words “to my Wife” into clause 3. This did not vary or contradict the language used, or rewrite the will. The surrounding will, the earlier will, the matrimonial home’s circumstances and Mr Jagger’s instructions all confirmed that he intended Mrs Jagger to receive his share absolutely.
3. The approach was distinct from the circumstances considered in In re Williams decd [1985] 1 WLR 905, where the proposed meaning could not be borne by the words used. It was also distinct from Reading v Reading [2015] EWHC 946 (Ch), where an inappropriate expression was being corrected rather than an obvious omission supplied.
4. Rectification. Alternatively, the threefold test in Re Segelman decd [1996] Ch 171 was satisfied. Mr Jagger intended his share in the matrimonial home to pass to his wife; the will failed to give effect to that intention; and the failure resulted from clerical error. The omission was most probably caused by a typist mishearing dictated words. The principle in Bell v Georgiou & Anor [2002] WTLR 1105 covered an omission by a solicitor, clerk or typist.
5. The will was construed as including the words “to my Wife”. No separate rectification order was required. The court made no order as to costs, on the footing that the solicitors responsible for the drafting error would indemnify the claimants’ recoverable costs.