Neutral Citation no. NICh 14
Judgment: approved by the Court for handing down
(subject to editorial corrections)
2001 No. 28969
IN THE MATTER OF THE ESTATE OF DAVID ALEXANDER HEAK, DECEASED
IN THE MATTER OF THE WILLS AND ADMINISTRATION PROCEEDINGS (NORTHERN IRELAND) ORDER 1994
This is an application brought by the executors of the will of David Alexander Heak, deceased ("the testator") for rectification of the will of the testator. The application is brought under article 29 of the Wills and Administration Proceedings (Northern Ireland) Order 19994 ("the 1994 Order").
Mr Orr QC appeared with Mr Egan on behalf of the plaintiff executors. Although all parties potentially prejudiced by the rectification proceedings, including the wife of the deceased, were notified of the proceedings, no other party sought to intervene and no objection was lodged in respect of the proposed application for rectification.
The testator died on 2 February 2000 leaving a will dated 21 November 1994 probate in respect of which was granted to the executors on 18 April 2000. The deceased who was 56 years of age at the date of his death was a farmer and was survived by his widow Annie Maud Heak. There were no children of the marriage. Of the various relatives of the deceased it appears that he was on closest terms with his grandnephew David Bailie Jnr ("the grandnephew"). The lands had apparently been in the Heak family since 1908. The deceased's will was drawn up by Mr Brian George Sherrard ("the solicitor"). As drawn up and executed the relevant portion of the will, so far as material, provided as follows:
"I give, devise and bequeath all my property both real and personal of whatsoever nature and description and wherever situate including, inter alia, my farm house and contents thereof stock, machinery equipment and all monies to my trustees upon trust for the benefit of my wife Annie Maud Heak before and during the term of her natural life.
In event of my said wife predeceasing me or failing to survive me by more 30 days then I give, devise and bequeath all my property both real and personal of whatsoever nature and description and wheresoever situate including, inter alia, my farm, house and contents thereof, stock, machinery equipment and all monies to my trustees UPON TRUST for my grandnephew David Bailie Jnr until he shall attain the age of 25 years and then upon trust for my third grandnephew absolutely and in that event I appoint my said nephew David Bailie to manage my farm, stock, machinery and equipment for his son, my said grandnephew David Bailie Jnr until he shall attain the age of 25 years and all profits of my farming business shall be invested for my grandnephew until he shall so attain the age of 25 years."
Mr Sherrard give evidence both by affidavit and orally. From his evidence it appears that the testator had mentioned to the solicitor a couple of months before the execution of the will that he was thinking of making a will and he asked his solicitor about advice as to what he should be thinking about. The solicitor advised him to think about who should administer the estate and who should benefit. At a later stage the testator came to the solicitor's office and gave instructions for the making of a will. The solicitor said that the testator made it clear that he wanted his wife to have her day in the farm, that is to say, to have the use and enjoyment of the home farm during her lifetime. He wanted his grandnephew to benefit after her death.
Unfortunately the solicitor failed to make a note of his instruction or keep an attendance note. He gave evidence that on occasions in preparing a will he would transcribe the will himself using an old Olivetti machine and if the client approved the contents of the document he would run an engrossment for execution. He said that in this case he may have called up an old precedent and slightly altered it.
Mr Sherrard accepted that the will contained a logical gap. The gift to the testator's grandnephew on the face of it only took effect in the event of the wife predeceasing the testator or failing to survive him by more 30 days. Yet the testator made clear in the will that the widow was only to have a life interest. The will thus on the face of it failed to dispose of the remainder interest. Mr Sherrard's clear understanding from his instructions was that the testator really intended the grandnephew to have the benefit of the farm after the widow had had her day and that it was as a result of his inaccurate draftmanship that the logical error occurred in the will.
The rectification sought
The originating summons set out the terms of the proposed amendment in the schedule to the summons. If amended the will would provide:
"In the event of my said wife predeceasing me or failing to survive me by more than 30 days and in the event of the death of my said wife, then I give, devise and bequeath all my property, both real and personal of whatsoever nature and description and wherever situate including, inter alia, my farm, house and contents thereof, stock, machinery, equipment and all monies to my trustees UPON TRUST for my grandnephew David Bailie Jnr until he shall attain the age of 25 years and then UPON TRUST for my said grandnephew absolutely AND in that event I appoint my said nephew David Bailie to manage my farm, stock, machinery and equipment for his son, my said grandnephew David Bailie Jnr until he shall attain the age of 25 years and all profits of my farming business shall be invested for my said grandnephew until he shall attain the age of 25 years."
The statutory basis for rectification
Article 29(1) of the 1994 Order provides:
"If the 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 intention."
The application of Article 29
Article 29 replicates in Northern Ireland the provisions of Section 20 of the Administration of Justice Act 1982. The English provisions flowed from the recommendations of the Law Reform Committee in its 19th Report (Cmnd 5301) (1973).
In Wordingham –v- Royal Exchange Trust Company Limited  Ch 412 the court had to consider the meaning of the term "clerical error". Mr Evans-Lombe QC, the deputy judge, had to deal with a mistake which lay in a failure to include in a new will made in 1989 a clause exercising a testamentary power of appointment in favour of the deceased's husband which had been conferred on the testatrix under the will of her father. The relevant clause exercising that testamentary power had been included in two earlier wills. The judge was satisfied that the testatrix intended that her 1989 will should include a provision precisely in the terms of the relevant clause in her immediately preceding will. He concluded that in his judgment the solicitor's error in failing to include in the new draft will the paragraph following the provisions of the relevant clause of the earlier will was an error made in the process of recording the intended words of the testatrix and in the court's judgment that constituted a clerical error within the meaning of the statute. He said:
"The words clerical error used in section 20(1)(a) of the 1982 Act are to be construed as meaning an error made in the process of recording the intended words of the testator in the drafting or transcription of his will."
In Re Segelman deceased  Ch 171 Chadwick J pointed out that if taken out of context those words might be thought to require a finding that the testator had actually reached the point of putting into words the relevant provision which was to give effect to his intention or of approving words put to him by another for that purpose. For his part Chadwick J did not think that the jurisdiction conferred by section 20 of the 1982 Act in England was limited to cases in which "the intended words of the testator" can be identified with precision.
"In my view the jurisdiction conferred by section 20(1), through paragraph (a) extends to cases where the relevant provision in the will, by reason of which the will is so expressed that it fails to carry out the testator's intentions, has been introduced (or as in the present case has not been deleted) in circumstances in which the draftsman has not applied his mind to its significance or effect … As Nicholls J pointed in Re Williams Deceased, Wiles –v- Madgin  1 WLR 905, 911-12 a testator writing out his own will can make a clerical error just as much as someone else writing out a will for him."
In the circumstances of that case the court considered that the failure by the solicitor through inadvertence to delete a proviso from the draft will once he had the list for inclusion and the relevant schedule could properly be regarded as a clerical error.
The evidence satisfies me that the testator made clear to the solicitor that he wished to make provision for his widow in respect of the farm for her life and that the farm should pass to the grandnephew on his death. In adopting the wording of an inappropriate precedent the solicitor's transcription of his client's instructions failed to give effect to the testator's true intention. The drafting of the will resulted in a failure to make provision for the disposal of the remainder interest and it was a clerical error for the purposes of article 29 (accepting Chadwick J's interpretation of the law).
However, the wording of the rectification as sought goes beyond what has been proved to be the relevant clerical error. The solicitor's evidence was that the testator intended his wife to have the use of the farm for life. The estate appears to include some other assets (which may have little overall value) in the finality of the estate. The disposal of the remainder interest in the farm to the grandnephew would have included the house, the contents thereof, stock, machinery and equipment. However I have not been satisfied that the testator gave instructions that indicated clearly that the grandnephew was also to be entitled to the monies in the estate. In these circumstances I accede it to rectification claim brought by the executors subject to some modification. The authorised rectification of the will will accordingly read as follows:
"In the event of my said wife predeceasing me or failing to survive me by more than 30 days and in the event of the death of my said wife, then I give devise and bequeath my farm, house and contents thereof stock, machinery and equipment to my trustees UPON TRUST for my grandnephew David Bailie Jnr until he shall attain the age of 25 years and then UPON TRUST for my said grandnephew absolutely AND in that event to appoint my said nephew David Bailie to manage my farm, stock, machine and equipment for his son my said grandnephew David Bailie Jnr until he shall attain these 25 years and all profits of my farming business shall be invested for my said grandnephew until he shall attain the age of 25 years."
I shall hear counsel on question of costs.