Will Construction

wills solicitor gift

There was a timely warning of the importance of some basic principles of the drafting of critical legal documents, and wills in particular, in the recently reported case decision in Eade v Hogg [2021] EWHC 1057 (Ch).

The case involved a dispute as to the true wishes of the deceased in relation to changes made to his will a few years before his death. As is so often the case, it was once again not so much the more complex legal terminology that was the immediate cause of the problems in this case, but rather the implications of the more everyday words “both” or “each”.

Amongst the resulting dispute and confusion the court also had to consider whether it was appropriate to use its statutory powers to amend the wording of the will in pursuance of sections 20-21 of the Administration of Justice Act 1982.

Section 20 provides that:

“If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence—

(a)  of a clerical error; or

(b)  of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.”

Following on from this s.21(2) provides that “extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation”.

This case decision provided a lengthy examination of the circumstances in which the will came to be amended and the accompanying evidence of what had been intended at the time and why.

The will at the centre of this lucrative estate had been drawn up in 2007 and provided for gifts of 26% each to be granted to the testator’s wife and a long term friend and colleague, but this was amended in 2015 so that 26% of the value of the estate would instead be the total amount to be shared between these two parties. The changes made in 2015 were apparently inspired for tax avoidance purposes, especially during the widow’s lifetime. The executors were then given the power in these amendments, however, to restore these interests to 26% of the estate but the will as then amended provided that this figure would be for “both” of them rather than “each”.

One of the more unfortunate aspects of the case was the lack of attendance notes by the solicitor from the meeting and some confusion as to whether one had been created and stored.

The testator’s wife had been more meticulous in the notes that she had made, however, and at paragraph 131 of the judgment, Deputy Master Linwood expressed the view that her account was “inherently probable” whereas the views of the solicitor involved were “inherently improbable”. For this reason the widow’s evidence would be preferred to the solicitor’s .

On this basis it was ruled that the word “each” had been mis-transcribed within the firm as “both”, and so could be corrected as a clerical error in accordance with the Administration of Justice Act 1982. The testator had been anxious to avoid IHT but there was no evidence that he had wanted any tax savings to override the total shareholding and entitlement for the two parties involved. It would therefore be appropriate to correct the will to give effect to what had to be accepted to be the testator’s true intentions.

The learning point of the case is the point often made in most legal lifetimes, and more so during training, of the importance of noting and storing everything that might become significant in the fullness of time, and also the need for careful checking of drafts before they are sent out to the client and adopted.

Comments were also made at paragraph 121 of the judgment as to the risk of a conflict of interests arising where the solicitor had taken instructions from the testator Mr Nodes in 2015 which had to be seen as being to the detriment of Mrs Nodes whose future shareholding would thereby be reduced by the changes made. This, sadly, was just one of the criticisms made of the solicitor concerned, including the failure to create and store an attendance note or to send notes of the meeting to his client, and having failed to “carefully and properly proof-read” the will drafts to ensure that they did indeed represent the client’s true wishes.

There was also a reference to the testator’s “age and frailty” suggesting that a home visit would have been required, and so an apparent failure to act on the basis that he had been a vulnerable client. On this last point, Infolegal members may refer to our draft vulnerable clients policies that form part of each of our template office procedures manuals and to Factsheet 25 – Vulnerable Clients.

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