Morrell & Ors v Morrell & Ors

Rectification of a deed requires convincing proof that the document records a different intention, an operative mistake in its wording, proof of what was intended instead, and an issue capable of being contested between affected parties even where all consent. In a voluntary disposition, the relevant intention is that of the person making the disposition. A mistake about the identity of trust beneficiaries may be operative; it is distinct from a mistake about the legal or tax consequences of the chosen trust. The court retains a discretion to refuse rectification, including where delay or intervening third-party rights make it inappropriate.

The claimants sought rectification under CPR Part 8 of a deed of variation dated 31 October 2018, which varied the will of Gillian Morrell. The deed established a discretionary trust for three children but omitted Philip Morrell and his wife Helen, although the claimants contended that Philip intended all five family members to be potential beneficiaries.

The defendants acknowledged service but neither contested the claim nor participated at trial. The court therefore determined, principally on written evidence, whether Philip’s intention had changed, whether the omission resulted from an operative mistake, whether the intended correction could be proved, and whether rectification should be granted.

1. Rectification requirements. The court adopted the four requirements identified in Giles v Royal National Institute for the Blind [2014] EWHC 1373 (Ch): convincing proof of a different intention from that expressed; an operative mistake in the wording; proof of what was intended; and an issue capable of being contested between the affected parties, notwithstanding consent.
2. Relevant intention. The deed was effectively a voluntary disposition by Philip of part of his inheritance. His intention, rather than that of another party to the deed, was therefore decisive. This was consistent with Re Butlin’s ST [1976] Ch 251 and Day v Day [2014] Ch 114.
3. Operative mistake. The evidence established that Philip initially intended a trust for his children alone but later intended a discretionary trust for the children, himself and Helen. The omission of Philip and Helen concerned the identity of the beneficiaries. It was not merely a mistake about the legal or tax consequences of a trust that had otherwise been correctly constituted. The distinction from Alnutt v Wilding [2007] EWCA Civ 412 was material.
4. Intended correction. The evidence sufficiently established both the discretionary form of trust and the intended class of beneficiaries. Philip had seen and signed the discretionary trust form, and the claim sought only to restore himself and Helen to the class of objects.
5. Discretion and order. Rectification was discretionary. No delay, intervening third-party rights, or other reason justified refusal. The deed of variation was ordered to be rectified in accordance with the draft order.

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