Nina Angelova v Peter John Holden Kershaw & Anor

Rectification of a will requires the court to identify the testator’s intentions, determine whether the will fails to give effect to them, and establish that the failure resulted from a clerical error or a failure to understand instructions. The claimant bears the burden of proof on the balance of probabilities. A clerical error includes inserting wording which was not intended or omitting wording which was intended, but the intended wording must be proved. A testator’s opportunity to review and sign a will does not establish that the error was noticed. Extrinsic evidence, including a solicitor’s file and an inconsistent letter of wishes, may establish the testator’s unchanged intentions and justify rectification.

The claimant, a beneficiary under the will of Peter John Bryant, sought rectification under section 20 of the Administration of Justice Act 1982. The will made the claimant’s benefit under a discretionary trust conditional on marriage, although the testator’s later written beneficiary plan and letter of wishes provided for her benefit regardless of marriage.

The executors opposed the claim, principally arguing that the testator had engaged closely with the drafting, understood the significance of marriage, knew that the will prevailed over the letter of wishes, and had ample time to review the final will. The central issue was whether the will failed to carry out the testator’s intentions as a result of the solicitor’s clerical error.

1. The claim for rectification was allowed. The will was ordered to be rectified so that the claimant’s entitlement under clause 15.11.a applied whether or not she was married to the testator at his death.
2. Section 20 of the Administration of Justice Act 1982 required the court to determine three questions: the testator’s intentions concerning the relevant dispositions; whether the will failed to carry out those intentions; and whether that failure resulted from a clerical error or a failure to understand instructions. This approach was taken from Re Segelman [1996] Ch 171 (para 17).
3. A clerical error occurs where the testator, solicitor, clerk or typist inserts wording which was not intended or omits wording which was intended. Rectification also requires proof of the testator’s intended instructions. The claimant bore the burden of proof on the balance of probabilities (paras 18–19).
4. The solicitor’s failure to transpose the Revised Plan into the will was plainly a clerical error. The testator’s intention concerning the BCT trust had remained unchanged after 22 April 2020. The letter of wishes expressly provided for the claimant’s benefit regardless of marriage and was inconsistent with the will. Its terms, together with the will file and the absence of any evidence that the testator had noticed the discrepancy, strongly supported the claimant’s case (paras 35–36, 40–50).
5. The testator’s active involvement in the drafting, his interest in inheritance tax, the non-binding nature of the letter of wishes, and his opportunity to review the final will did not establish that he had noticed or accepted the departure from his instructions. Mere opportunity to review a document did not show that the opportunity was used (paras 43–52).