Barrett v Hammond & Ors

Under Administration of Justice Act 1982, a will may be rectified where it fails to give effect to the testator’s intention because of a clerical error or a failure to understand instructions. The court must first identify the relevant intention and determine whether the will fails to implement it. “Clerical error” has a broad meaning. It can include an administrative or drafting oversight which leaves part of an estate undisposed of, where correcting the figures requires no special legal expertise. A codicil is capable of rectification because “will” includes a codicil and the codicil republishes the will as one testamentary disposition. The court should, where the evidence permits, construe and rectify testamentary documents to give effect to the testator’s intention to avoid an unintended partial intestacy.

Elizabeth Barrett, the proving executor of Dr Robert Munroe Black’s estate, sought directions concerning a will and codicils which divided the residue into fifty-two parts. A codicil removed two gifts of six parts each but added only two gifts of two parts, apparently leaving eight parts undisposed of. Master Kaye had determined that a partial intestacy arose and directed the claimant to pursue rectification.

The claimant sought rectification under section 20(1)(a) and (b) of the Administration of Justice Act 1982, principally by replacing “fifty-two” with “forty-four”. The issue was whether the discrepancy resulted from a clerical error or a failure to understand instructions, and whether rectification should be granted.

1. Rectification granted. Clause 9 was rectified by replacing “fifty-two parts” with “forty-four parts”. The claimant’s costs were ordered to be paid out of the estate as an expense of administration.
2. Section 20(1) of the Administration of Justice Act 1982 requires the court to determine: the testator’s intention regarding the relevant dispositions; whether the will fails to carry out that intention; and whether the failure resulted from a clerical error or from someone failing to understand the testator’s instructions, applying the three-stage approach identified in Re Segelman [1996] Ch 171.
3. The evidence showed an intention to dispose of the whole estate and avoid a partial intestacy. The structure of the will, the provisions dealing with failed gifts and charities, the care taken in the testamentary synopses, the mathematical calculations, and the mirror wills all supported that conclusion. The testator’s failure to alter the number of parts in the codicil did not reflect an intention to benefit intestate relatives.
4. A codicil can be rectified. Section 1 of the Wills Act 1837 includes a codicil within “will”. Confirmation in a codicil republishes the will, and the will and codicil are construed as one testamentary disposition.
5. “Clerical error” in section 20(1)(a) bears a broad meaning, consistently with Marley v Rawlings [2014] UKSC 51. The solicitor’s failure to reconcile the reduced gifts with the unchanged total of fifty-two parts was a clerical oversight. Correcting the arithmetic required no specialist legal expertise and did not involve misunderstanding the testator’s instructions.
6. The approach was supported by Harrison, Turner & Hellard (1885) 30 Ch. D 390 and applied in the light of Clarke v Brothwood [2007] WLTR 329. The court therefore rectified the will so that the specified gifts accounted for the whole residue.