CLARE ALISON LAIRD (executor of the estate of Robert John Simcock) v CATHERINE ANNE LOWDER SIMCOCK (executor, trustee and beneficiary of the estate of Robert John Simcock)

Rectification of a deed requires convincing evidence of the maker’s specific subjective intention, a flaw in the document rather than a mistake about its consequences, and sufficient precision to identify the intended wording or effect. The court must also be satisfied that there is an issue capable of being contested, even where all relevant parties consent. A solicitor’s intention is relevant only insofar as it reflects the instructions and intention of the deed’s maker. A general intention to obtain a tax advantage does not establish a specific intention to appoint only particular assets. The claim for rectification was therefore dismissed.

The claimant and the first defendant were trustees of a will trust. They executed a deed appointing the income of the entire trust fund to the first defendant for life. The claimant later sought rectification, alleging that the trustees had intended to appoint only assets which did not qualify for agricultural or business property relief from inheritance tax.

The substantive relief was unopposed. Following an initial hearing, the court invited further evidence concerning the trustees’ knowledge and intentions when executing the deed. The central issue was whether the evidence established the specific true intention alleged and showed that the deed failed to record it.

1. The claim for rectification was dismissed. The claimant failed to establish by convincing evidence that the trustees had the alleged specific intention that only the tax-bearing assets should be appointed to a life interest trust for Catherine.

2. Rectification is a discretionary remedy to be treated with caution. The claimant must prove, on the balance of probabilities but by convincing evidence, the true intention which the instrument failed to record. There must be a flaw in the document, rather than merely an unintended or undesirable consequence. The specific intended effect must be shown with sufficient precision. There must also be an issue capable of being contested notwithstanding consent by the relevant parties, applying the principles summarised in RBC Trustees (CI) Ltd v Stubbs.

3. The relevant intention was the subjective intention of the maker of the deed, applying Day v Day. The intention of the drafting solicitor was relevant only to the extent that it reflected the trustees’ instructions and intentions.

4. The claimant’s evidence showed that she delegated the matter to the solicitor and lacked any relevant intention beyond signing the document placed before her. The first defendant understood the general tax purpose, but that did not demonstrate the specific intention to appoint only assets lacking agricultural or business property relief. The evidence therefore did not satisfy the rectification test.