Clare Alison Laird v Catherine Anne Lowder Simcock & Ors

Rectification of a voluntary instrument requires convincing evidence, assessed on the ordinary civil standard, that the instrument fails to record the maker’s specific subjective intention. Where several makers execute the instrument, the relevant intention must be established for each of them. The drafter’s intention is insufficient unless it reflects the makers’ instructions.

An unopposed claim is not automatically proved. The court must scrutinise unchallenged written evidence carefully, although it should not ordinarily disbelieve such evidence without cross-examination unless it is manifestly incredible. On an appeal decided solely on written evidence, the appellate court may be as well placed as the first-instance judge to assess it.

The appellant, formerly an executor and trustee of Robert Simcock’s estate, sought rectification of a deed of appointment executed by the trustees. The deed appointed a life interest over the whole residuary trust fund to the deceased’s widow, whereas the appellant contended that it was intended to cover only assets not qualifying for inheritance tax relief.

Master Clark dismissed the unopposed claim, finding that the required intention had not been established for either trustee. The appeal concerned the applicable rectification test, the civil standard of proof, and the proper treatment of unchallenged written evidence.

1. Appeal allowed. The Master’s dismissal was set aside and the deed was rectified.
2. Rectification of a unilateral or voluntary document is a discretionary remedy requiring clear and convincing proof, on the balance of probabilities, that the document contains a flaw and fails to give effect to the maker’s specific subjective intention. The relevant intention is that of the maker, not the solicitor who drafted the document. In this case the required intention had to be established for both trustees.
3. The reference to convincing proof did not impose a standard higher than the ordinary civil standard. It reflected the caution required because the alleged intention contradicted the written instrument.
4. Subject to limited exceptions, a court should not disbelieve written evidence in the absence of cross-examination. Untested evidence may be rejected where it is manifestly incredible. Unchallenged evidence nevertheless requires careful scrutiny; the court must assess what the witness actually says and cannot fill evidential gaps.
5. The evidence of the appellant and the solicitor, read together, established that the appellant had intended the deed to appoint only the inheritance-tax-bearing assets. The widow’s evidence, read with the solicitor’s letter explaining the intended tax treatment, established the same intention on her part.
6. Because the appeal was determined on written evidence, the appellate court was in as good a position as the Master to assess that evidence. The court therefore ordered rectification so that clause 2.1 referred to income from the part of the trust fund not attracting relief under Inheritance Tax Act 1984, Chapter I or Chapter II of Part V. Consequential costs matters were left for further hearing.

• Chancery Appeals (ChD): Appeal allowed against Master Clark’s order dated 26 July 2022 dismissing the rectification claim. The order was set aside and rectification was granted.