Steven Leslie Pead v Prostate Cancer UK & Ors.

Rectification of a will requires proof that the will fails to give effect to the testator’s intentions because of a clerical error or a failure to understand instructions. The court must identify the intended dispositions, the respects in which the will fails to implement them, and the relevant causal error or misunderstanding. Execution in formal circumstances ordinarily carries substantial evidential weight, although that weight may diminish where the wording is difficult to construe. A will is interpreted using the contractual approach. Where the wording is ambiguous, admissible extrinsic evidence may include evidence of the testator’s intention. On the evidence, the residuary estate was to pass to the named beneficiaries pro rata according to their pecuniary legacies, rather than in equal shares.

The claim concerned the will of James Murray McKay, who died on 11 February 2021. Steven Pead, the deceased’s stepson and executor, sought rectification under section 20 of the Administration of Justice Act 1982 so that the residuary estate would pass only to family beneficiaries named in clauses 4.1 to 4.3. Alternatively, he sought construction of clause 11, which referred to beneficiaries in clauses 4.1 to 4.8 and stated that the residue was to be held in accordance with the provisions relating to each gift.

The charities and family beneficiaries opposed rectification and contended that the residue should be divided equally. The issues were whether rectification was established and, if not, how clause 11 should be construed.

1. Rectification. Section 20(1) of the Administration of Justice Act 1982 requires the court to determine: the testator’s intentions concerning the relevant dispositions; whether the will fails to carry them out; and whether that failure resulted from a clerical error or failure to understand instructions. The standard is the balance of probabilities, but convincing evidence is generally required because formal execution ordinarily supports the inference that the will reflects the testator’s intentions.
2. The court was not sufficiently satisfied that the deceased intended to exclude the charities from the residue. The contemporaneous manuscript annotation referred to division between all beneficiaries in clauses 4.1 to 4.8. The later reference to “in equal shares” in the attendance note was treated as Mrs Hill’s inference rather than an instruction whose method of application had been discussed with the deceased. The rectification claim therefore failed.
3. Construction. Following Marley v Rawlings [2015] AC 129, the court applied the contractual approach to interpretation of wills. Section 21 of the Administration of Justice Act 1982 permits extrinsic evidence, including evidence of the testator’s intention, where the statutory conditions for ambiguity or meaninglessness are met.
4. Clause 11 was ambiguous because it did not specify how the residue was to be divided. The phrase referring to the provisions relating to each gift more naturally concerned the terms of each gift, but could not establish equal division. Considering the differing pecuniary legacies and the evidence as a whole, the residue was construed as passing to each beneficiary named in clauses 4.1 to 4.8 pro rata according to the proportion that that beneficiary’s legacy bore to the total gifts under clause 4.
5. The admitted clerical error in clause 4.7 was rectified under section 20 so that the legacy to Cancer Research UK increased from £5,000 to £6,000. The pro rata calculation was to proceed on that basis.
6. In relation to cross-examination of the solicitors who had taken the deceased’s instructions, the court treated their position as analogous to attesting witnesses and permitted cross-examination by both sides. The court had been referred to Ocado Group plc v McKeeve [2021] EWHC 3542 (Ch).