ON APPEAL FROM THE NEWCASTLE-UPON-TYNE COUNTY COURT
MR RECORDER HOLMES
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE WILSON
| (1) JUDITH ANN BOSWELL
(2) JENNIFER WYCOFF
(3) JACQUELINE OLDS
|- and -
|(1) JOHN LAWSON
(2) SEAN HAROLD HUDSON
(3) PHILIP JOHN APPLEBY
(4) CAROL ANN APPLEBY
Jacqueline Smart (instructed by Foley Harrison) for the Third Respondent
James Richardson (instructed by Mincoffs) for the Fourth Respondent
The First and Second Respondents were not present or represented
Hearing date: 7 March 2011
Crown Copyright ©
Lord Justice Lloyd:
i) By clause 5 the testator's half share in the Property was given to their son Philip Appleby, with a direction that the Property was not to be sold, while the surviving spouse was alive, without his or her consent, and with a substitutional gift in case Philip Appleby did not survive the testator.
ii) By clause 6 the residuary estate was to be held for the surviving spouse absolutely.
iii) Clause 7 said that if the spouse predeceased the testator, "then and only then clauses 8 and 9 hereof shall have effect".
iv) Clause 8 gave the residuary estate of the testator to such of the children as survived the testator, if more than one in equal shares, with substitutional provisions.
v) Clause 9 conferred administrative powers in relation to the residuary estate. Nothing turns on it for present purposes.
"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".
"Dear John and Alice,
I refer to our discussions on 13th November when you signed the Deed of Gift and your Wills. The effect of the Deed of Gift is to put the house and land into joint names so that you each own one half thereof. On the death of the first of you the deceased's share will not vest in the other one but will devolve under the terms of your will.
The Wills provide that on the death of the first of you that person's share in the house and land goes to Philip. If Philip has died before you (and the way he drinks there is no telling what might happen) then it will go to any children of his and will vest in them when they reach the age of 23. On the death of the second of you the other half of the house and land and all the rest of your estate is divided equally between all of your children including Philip. Again if any of your children have died before then leaving grandchildren the grandchildren would take their parent's share on reaching the age of 23.
It is also written into the Will that on the death of the first the property cannot be sold without the consent of the second until the death of the second.
I enclose copies of your Wills which should be kept with your papers and confirm that I hold the originals on your behalf in safe custody. I also enclose the firm's bill of costs for your kind attention.
Thank you for your letter and enclosures dated 19th November describing the Deed of Gift and Wills. My wife and I are satisfied with the arrangements. …"
"Basically I run a branch office. It was litigation based. I was out at court most of the time. There were always urgent litigation things coming in, so something non-urgent like sending out a will which had been signed would always drop back and back, and eventually go out."
"49. I am satisfied that following the death of Mrs Appleby, Mr Appleby did read out the operative clauses of the Will and told his children in the presence of each other that his Will was in the same terms, and that he was taking the opportunity to inform them of the fact to forestall any arguments after his death."
"We went to live here with his father in 1981 and lived there until the separation. We looked after his father and mother. It was agreed before we moved into Stephenson Arms that when his parents died the property would pass to my husband as it would continue to be our matrimonial home. I saw his parents' wills which indicated that on their death it would pass to my husband. On that basis we moved into the property and looked after his parents. His mother died in January 2005. My husband has three sisters but it has always been understood in the family that when his parents die Stephenson Arms would go into my husband's sole name. It is mortgage free. When his mother died she left her half of the property to Philip as agreed with us prior to our moving into the property. Therefore in due course my husband will become the sole owner of Stephenson Arms mortgage free."
"… there had been an expectation that the property would pass to the respondent husband with his three sisters sharing in the residuary estate …"
"43. The Claimants and the Third Defendant say in consequence of sight of Mr Morris' letter that the Will ought to be rectified because this is a plain and obvious case in which a clerical error has been made, and that exceptionally, it is even an error that has been admitted to by the draftsman. I am however far from satisfied that matters are as simple as that. It is in my judgement a simple assumption upon which this application rests, and no more. The assumption that lies at the heart of the Claimants' case is that it is when drafting the Wills that Mr Morris made an error in failing to record the instructions of Mr and Mrs Appleby, and that he made no error when he wrote to them a week later describing the effect of the Wills. Turn that around, so as to assume that the error was made by him when drafting the letter, and that it is the Wills that accurately reflects the intentions of Mr and Mrs Appleby, and suddenly the Wills as drafted can be seen to be consistent with both the conduct of Mr Appleby before 13 November 1990, and more importantly his conduct subsequently."
"The Wills provide that on the death of the first of you that person's share in the house and land goes to Philip. If Philip has died before you (and the way he drinks there is no telling what might happen) then it will go to any children of his and will vest in them when they reach the age of 23. On the death of the second of you the other half of the house and land goes to Philip and all the rest of your estate is divided equally between all of your children including Philip. Again if any of your children have died before then leaving grandchildren the grandchildren would take their parent's share on reaching the age of 23."
The error could have been the omission of those three words in the dictation or the typing, Mr Morris being under pressure from his litigation-based work as described at paragraph  above, and having to find time for this from more urgent litigation tasks.
Lord Justice Wilson
Lord Justice Jacob