England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LEEDS DISTRICT REGISTRY

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 May 2002

Mr Justice Blackburne:

Introduction

1. This is a claim under section 20(1) of the Administration of Justice Act 1982 for rectification of the last will dated 10 August 1998 of Joan Mary Bell who died on 5 April 2000 two weeks short of her 84^th birthday.
2. By that will Mrs Bell appointed the first defendant, who is a solicitor, to be her executrix. It was the first defendant who had taken Mrs Bell's instructions for and drafted the will. After giving her son, the claimant Douglas William Dawson Bell, a legacy of £150,000 and such of her chattels and personal effects, including her car, as he might select, she gave the remainder of her estate to the first defendant upon trust to pay her funeral and testamentary expenses and debts and, subject thereto, as to £26,000 for various beneficiaries (in differing sums ranging from £500 to £10,000), as to £4,000 for three charities (two of them receiving £1,000 each and the other £2,000) and as to the balance for the "RAF Benevolent Fund of 67 Portland Place, London W1 in memory of my late husband Squadron Leader W E D Bell DFC".
3. Her husband had died many years earlier. He had left to her the whole of his estate. After distinguished war service and a successful business life after the war, Squadron Leader Bell had spent the last year of his life at the RAF Benevolent Fund Home in Rustington, Sussex, where he had suffered a fatal stroke, aged 59, in November 1970.
4. The first defendant obtained probate of Mrs Bell's will on 31 January 2001. Her estate was sworn for probate with a net value of £669,371. The effect of the dispositions made by her will meant that no inheritance tax was payable since the value of the gifts other than to charity was less than £231,000, the nil-rate band at the time of her death. Subject to the costs of these proceedings, the sum which the RAF Benevolent Fund (as residuary legatee) can expect to receive will amount(on current estimates) to just under £600,000. At the time of Mrs Bell's death it was nearer £œ million. The claimant's primary contention is that his mother intended her will to give to him a further pecuniary legacy (over and above the £150,000 already given to him by the will) either of such amount as represented the nil-rate band at the time of her death, namely £231,000, or else £223,000 being the amount of the nil-rate band in August 1998 when she executed her last will. He contends that the first defendant was aware that this was his mother's wish. His alternative contention is that, apart from the fixed sum legacies totalling £180,000 set out in the will, Mrs Bell intended to give the RAF Benevolent Fund a legacy of no more than £11,000. She did not intend that it should receive any more and gave the first defendant no instructions over what should happen to the rest of her estate. He contends that the will should be rectified so that its dispositive provisions are limited to legacies in these amounts (totalling £191,000) with the result that the reminder of her estate passes as on a partial intestacy. As her sole next-of-kin he will take that remainder.
5. The terms of the will are perfectly clear. No issue of construction arises. Nor is there any issue concerned with Mrs Bell's testamentary capacity at the time that she executed her will (or, for that matter, during the remaining 20 months of her life). The claim is based, fairly and squarely, on what the claimant says was the will's failure to give effect to his mother's testamentary intentions and the application of section 20(1) of the 1982 Act.

The position in law

6. Section 20(1) provides as follows:

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."

The section then goes on to provide that an application for an order under the section should not, except with the court's permission, be made after the end of a six month period from the date on which representation to the estate is first taken out. The application in this case was issued on 18 July 2001, a little short of the expiry of the six month period. The RAF Benevolent Fund is named as the second defendant.

7. In the case of In re Segelman (decd) [1996] Ch 171 at 180, Chadwick J said of section 20(1): The subsection requires the court to examine three questions. First, what were the testator's intentions with regard to the dispositions in respect of which rectification is sought. Secondly, whether the will is so expressed that it fails to carry out those intentions. Thirdly, whether the will is expressed as it is in consequence of either (a) a clerical error or (b) a failure on the part of someone to whom the testator has given instructions in connection with his will to understand those instructions."
8. A clerical error is:

An error made in the process of recording the intended words of the testator in the drafting or transcription of his will ×"

See Wordingham v Royal Exchange Trust Co Limited [1992] Ch 412 at 419. The essence of the matter is that a clerical error occurs where someone, who may be the testator himself, or his solicitor, or a clerk or typist, writes something which he did not intend to insert or omits something which he intended to insert. This is to be contrasted with a failure to understand the testator's instructions where what is involved is a misunderstanding or breakdown in communication between the testator and his solicitor, or between the testator and the person who is writing out the will. See Hawkins On The Construction of Wills, Fifth Edition, at paragraph 1-10. The remedy is only available if it can be established not only that the will fails to carry out the testator's instructions but also what those instructions were. It will not be available where the mistake occurs, inter alia, because the testator never had any intention relevant to the events which actually occurred or he failed to appreciate the legal effect of the words used in his will. Moreover, as was made clear in Re Segelman (decd) by Chadwick J (at 184):

×although the standard of proof required in a claim for rectification made under section 20(1) of the Act of 1982 is that the court should be satisfied on the balance of probability, the probability that a will which a testator has executed in circumstances of some formality reflects his intentions is usually of such weight that convincing evidence to the contrary is necessary."

This passage was referred to with approval by Sir Christopher Slade in Walker v Geo Hewson Medlicott & Son (a firm) [1999] 1AER 685 at 690. The "contrary" to which the passage refers is that the testator intended his will to contain a provision different from what it actually contains.

The witnesses

9. It is convenient if I say something about the claimant and the first defendant as witnesses. They were the only persons who gave evidence. The claimant struck me as slightly impetuous. He was given to interrupting and anticipating questions and giving answers which often drifted off into irrelevancies. He was clearly intelligent and articulate. His claim to recall in some detail what happened at a meeting with the first defendant on 25 July 2000 and at two later meetings on 26 August and 11 September that year must be treated with caution. I say that notwithstanding that he had been (and was until recently) a journalist who was well used to interviewing people and taking interview notes. Although aided by very brief notes he took at the first and third of those meetings, I have the impression that in some respects (for example when seeking to recall what lay behind some of his notes) he had jumped to unjustified conclusions. In one or two cases, I suspect that he had simply misunderstood what he was told. Over the time that has passed since those meetings, he has plainly given a lot of thought to the circumstances in which he believes the will to have been made and what passed between him and the first defendant. The inevitable result is that true and accurate recollection has become a little clouded. Although I have no reason to think that he was doing other than telling his account of events as he honestly recalled them, I treat aspects of his evidence with caution. In short, although honest, he was not necessarily reliable.
10. The first defendant had only a very vague recollection of events and made no pretence to suggest otherwise. Indeed, she came across as an exceptionally frank witness and, in contrast to the claimant, as shy and diffident. She had no particular insights to offer; on the contrary, she seemed at times only too ready to agree with whatever theory that was put to her as to what might have happened on this or the other occasion. As someone who takes instructions for a great many wills, she had, unsurprisingly, no particular recollection of the meetings and telephone conversations between herself and Mrs Bell over the making of the 1998 will and an earlier will in 1989. She was almost entirely reliant for what had happened on her notes of attendances on Mrs Bell (and, for that matter, on the claimant) and, when taking instructions for the two wills, on her usual practice in such matters. Since her notes were mostly extremely brief and in some cases exceedingly delphic (to the point that one or two of her notes meant nothing to her) she frequently found herself unable to say what had happened. In short, her oral evidence added very little to what could be deduced, once her handwriting had been deciphered, from the notes she had taken and the other documents from her office file.

Instructions for the will

11. Mrs Bell's will had been drafted by the first defendant. In 1989 she had taken instructions for and drafted an earlier will for Mrs Bell.
12. By her 1989 will Mrs Bell had appointed the first defendant to be her executrix. After giving the claimant a legacy of £100,000 (with a substitutional provision in case he failed to survive her by one month) and after giving legacies totalling £8,000 (and ranging between £500 and £2,000) to various other persons and charities, she gave the residue of her estate to the RAF Benevolent Fund. The first defendant's file for that will was available. It is evident that Mrs Bell had provided the first defendant with very precise and detailed instructions. She had provided her with a typed list of all the intended legatees, including their relationship or other connection with her, and of the amounts each was to receive. It stated, for example, that the gift to a Mr Shepherd was to be "as a token of appreciation for all the help he has given to me as a trustee". (It appears, according to the claimant, that his mother had been a trustee of a number of family trusts.) Her instructions set out how the gift of residue to the RAF Benevolent Fund was to be described, namely "in memory of Sq/Ldr WED Bell DFC". It went on to state that "if my son does not survive me by one month, then his share of the estate should be divided equally between the surviving beneficiaries as follows ×" followed by a list of names. She even provided the first defendant with a clause dealing with how her body was to be disposed of. The clause was adopted, word for word (save only for a change of tense of one of the verbs used), in the will as drawn up and signed. She also gave to the first defendant a list of addresses of the various beneficiaries, including the charities. Clearly Mrs Bell was a person who knew exactly what she wanted and how she should set about communicating those wishes to her solicitor.
13. This fits in with the description of her given by the two witnesses. The claimant who last saw or spoke to his mother in 1978 (see later) said that his mother worked for a London stockbroker on leaving school where she "learned the inner workings of the Stock Exchange and was entrusted with extremely large sums of money at an early age". He then went on to say that she "never lost her interest in the Stock Exchange × and remained a well-informed and successful player of it" and "was financially astute". The first defendant met Mrs Bell on the occasion of taking instructions for and preparing her 1989 will (according to the will file there were three or so attendances involved) and on taking instructions for and preparing her last (1998) will which, as will later appear, involved approximately four attendances. By then Mrs Bell was 82. The first defendant said that her "overall impression of Mrs Bell was that she was a precise, well travelled lady who was also very intelligent". I have no reason to doubt this description of Mrs Bell.
14. There seems to have been no further contact between Mrs Bell and the first defendant after July 1989 until the latter received a phone call from Mrs Bell on 15 June 1998. Mrs Bell's purpose was to ask the first defendant to "review the will" as it is noted in the first defendant's attendance note of that call. In the course of that call Mrs Bell appears to have given the first defendant very brief details of her estate, of which she made a short note, and to have asked for copies of her 1989 will and a note of the addresses of the various beneficiaries. This was a reference to the typed-up list referred to earlier. The first defendant supplied them under cover of a letter to Mrs Bell four days later.
15. On 22 July 1998, Mrs Bell had a meeting with the first defendant at the latter's offices in Eastbourne. According to the first defendant's attendance note the meeting lasted one hour. The first defendant had no particular recollection of the meeting other than as appeared from that note. In her witness statement she said this:

my usual practice on revising a will is to take a copy of the old will and amend it during the course of the meeting. I therefore believe that I would have had a copy of Mrs Bell's 1989 will in front of me during the meeting and that I would have amended the will by hand to incorporate changes which Mrs Bell instructed me to make to the original will. The amended photocopy of the will is no longer on my file and it is possible that I would have discarded the drafts as I dictated the fresh will."

She repeated that in her oral evidence before me.

16. A major issue was whether, at that meeting, Mrs Bell supplied the first defendant with three pages of handwritten instructions (of which only the first and second pages of the original have survived, the third page being no more than a photocopy) and if not how and when those three pages came to be on the first defendant's 1998 will file. That file consisted of a slim envelope containing the attendance notes, correspondence and so on which came into existence in the course of taking instructions for, drawing up and arranging for the execution of the 1998 will. There was speculation that the notes might have come into the first defendant's possession immediately following Mrs Bell's death when the first defendant called at Mrs Bell's house and collected certain papers. There was a suggestion that they may have found their way into the file when that file was placed with the probate file which came into being after Mrs Bell's death. In her witness statement the first defendant, who seemed genuinely unclear about whether she saw the notes before Mrs Bell's death and whether therefore they had been supplied to her by Mrs Bell at the time she took instructions for and later drafted the 1998 will, said "it is possible that Mrs Bell gave me the notes when first instructing me about the will or when she came in to sign the will. It certainly seems likely that the notes came into my possession before Mrs Bell's death". In cross-examination by Mr Rose for the claimant, the first defendant stated that the most likely explanation is that they were in the will file and came into her possession before Mrs Bell's death.
17. The notes which have the date July 1998 in the top left corner of the first page were made up of the following. The first page contains brief details of bank accounts, a firm of accountants, share nominees and where deeds and the like are located. It then sets out an estimate of the value of Mrs Bell's main assets. They add up to £605,000. There is then the following calculation:

605,000	Personal allowance
- 223,000
382,000	Taxed at 40% plus
- 191,000	Expenses say 50%
191,000	left for disposal

The second page sets out a list of legacies comprising names and amounts. The name at the top of the list is Douglas Bell, ie the claimant, against whom is written the figure "150,000" surrounded by a box. The amounts of all the legacies are added up and come to £180,000. They include the legacies to Imperial Cancer, Distressed Gentlefolks and the National Children's Home which are all charities. Two of them had featured in the 1989 will. There is then the following calculation at the foot of the page:

191,000

- 180,000

11,000

Balance of £11,000 to RAFA.

The third sheet states that "if my son predeceases me" above which are written the words "without issue" "his share of the estate to be divided (£150,000) between" and there are then set out various names followed by the calculation "150,000 ÷ 6 persons = 25,000 each".

18. The first defendant's witness statement states that :

Since I cannot remember whether I saw the note [ie the three pages of notes] prior to Mrs Bell's death I cannot recall whether I discussed the accuracy of Mrs Bell's assumptions as to the likely level of expenses for the estate with her. I think however that it is unlikely that I did so; firstly because I think such a conversation is more likely than not to have stuck in my memory and secondly because I think it is possible that either I or Mrs Bell would have made some alterations to the note."

It is the fact that the three pages of notes do not contain any alterations or other annotations. (The reference to expenses in that passage is to the assumption of expenses totalling £38,000 implicit in the 50% deduction which formed part of the calculation resulting in the sum of "£191,000 left for disposal".)

19. The first defendant's handwritten attendance note of the meeting of 22 July covers just two pages. It is likely that she had a copy of the 1989 will before her because, for example, alterations to the intended legatees and the amounts they were to receive are noted on the attendance note against lettered references (or, in the case of the appointment of the first defendant as executrix, a numbered reference) which correspond to the clause references in the 1989 will. But the attendance note is exceedingly brief. Thus, for example, it states merely "general proviso for gift over to go to the children". One of the items it does mention is "son up to £150,000 or his children but if he predeceases then to 6 named beneficiaries". That, as the first defendant confirmed, was a reference to Mrs Bell's instruction to increase the legacy to the claimant to £150,000 from the figure of £100,000 at which it stood in the 1989 will.
20. Following the meeting on 22 July, nothing much seems to have happened until 6 August when Mrs Bell rang to enquire about progress. That same day, 6 August, the first defendant sent Mrs Bell a draft of the new will under cover of a letter which invited her to ring back with any amendments or other points that she might have. Mrs Bell did indeed ring back. She did so the following day, 7 August. The first defendant's attendance note of that call is exceedingly delphic, so much so that the first defendant was not able fully to interpret what she had written. The note merely states "Has been. List of addresses to be typed up. Only nieces. (Investment clause)". Thus, she was unable to recall the relevance of an investment clause to the terms of the will and, in any event, none was included. There was nothing, however, to indicate any wish on Mrs Bell's part to alter any of the substantive provisions in the draft. Three days later, Mrs Bell called in to the first defendant's offices where she executed the will. An invoice for the first defendant's services refers to this. The two witnesses were employees of the first defendant's practice. The first defendant had no recollection of the occasion.
21. Did then the first defendant have the three pages of notes at the time she drew up the 1998 will? I am of the view that, on the balance of probability, she did. I come to that conclusion for the following reasons. First, if, as the first defendant appears to accept, the notes came into her possession before Mrs Bell's death, that can only have happened at her meeting with Mrs Bell on 22 July or when Mrs Bell called in at the office on 10 August to execute the will. Other than the three or so telephone conversations between 15 June and 7 August, there was no other contact between Mrs Bell and the first defendant. There can be no good reason why the notes should have been handed over at the time of execution. Second, Mrs Bell had furnished the first defendant with detailed instructions when her 1989 will was drawn up. It would have been consistent with what happened on that occasion for Mrs Bell to have provided the first defendant with detailed instructions on this occasion as well. Indeed, as Mr Rose observed, it would have been a little odd if, having made them, Mrs Bell had not given them to the first defendant. Third, there are changes in wording in the 1998 will from the corresponding provisions contained in the 1989 will which reflect fairly closely the information contained in the three pages of notes and which are not readily explicable except on the basis that those notes had formed part of the information available to the first defendant when she drafted the 1998 will. Perhaps the most striking example of this concerns the gift over of the claimant's £150,000 legacy in the event that he should not survive his mother by one month and should leave no children surviving her. In the 1989 will there are seven persons who take in that event. In the 1998 will the fourth name has been deleted, the order in which the fifth and sixth names appear has been reversed and the name of the fifth (formerly the sixth) altered to reflect that person's marital status. The seventh name has been changed in favour of that person's son. These changes follow exactly the third page of the three pages of handwritten notes. In particular, it is difficult to see why the order of the fourth and fifth names should have been changed (a purely cosmetic alteration) if the first defendant had been doing no more than noting on the 1989 will any changes to identities of legacies and amounts each was to receive which Mrs Bell required. Fourth, the claimant recalled the first defendant telling him at a meeting with her on 11 September 2000 that Mrs Bell had given to her the three pages of handwritten notes to assist in the preparation of the will. Conversely, the claimant had no recollection, and certainly had no note, of the first defendant saying at that meeting that she had found those notes from among the papers collected from Mrs Bell's house immediately following her death. Since the time of that meeting was only five months after the death, she might be expected to have recalled the matter if she had. Fifth, the first defendant's handwritten note of her meeting with Mrs Bell on 22 July 1998 refers to "£30,000 as per ×". There is then a mark which could not be deciphered. The note, such as it is, appears immediately after a reference to the claimant's legacy going up to £150,000 and immediately before very brief reference to legacies mentioned in the 1989 will. It is entirely possible that in writing "£30,000 as per ×" the first defendant was intending to refer to the £30,000 list of legacies set out on page two of the notes immediately below the reference to the claimant's legacy of £150,000. No other source has been identified. Sixth, the fact that the notes contained no alteration or other annotations seems to me to be neither here nor there. The detailed instructions from Mrs Bell for her 1989 will which the first defendant was given on that earlier occasion are likewise without alterations or other annotations in the first defendant's handwriting.

Communications between the claimant and the first defendant

22. So much for the circumstances in which the 1998 will and, to a lesser extent, the 1989 will were drawn up. I now come to the communications between the claimant and the first defendant in the months following Mrs Bell's death. It is said, on the claimant's behalf, that these events cast light on Mrs Bell's intentions, and on the first defendant's knowledge of them, at the time she made her last will.
23. The claimant was abroad at the time of his mother's death in early April 2000. He only discovered that she had died on 15 July 2000 when he returned home after (as he put it) another extended trip abroad. By then Mrs Bell's funeral had taken place. I will return later to how it came about that the claimant was in ignorance of these events. He arranged to see the first defendant a few days later on 25 July. Either at that meeting or as a result of an earlier communication with the first defendant, the claimant was given to understand that the estate was of the order of £450,000 to £500,000, what in broad terms the will provided (including the fact that, after legacies totalling £180,000 and the gift of chattels and personal effects, the RAF Benevolent Fund was to receive the remainder of the estate) and that no inheritance tax was payable. He was supplied at the meeting with copies of the will and of the 1989 will.
24. Mrs Bell had owned a small car. Because the claimant had no need of it and the first defendant was looking for one, it was agreed that the first defendant should buy it. A price of £5,500 was agreed. On 26 August the claimant and the first defendant met again, this time at Mrs Bell's former home which the claimant was in the process of clearing prior to its sale. The purpose of the meeting was for the first defendant to hand over her cheque in exchange for the car. She was accompanied by her husband. It was at that meeting, as I accept from the claimant's evidence, that, having had a chance to study it, the claimant raised certain issues concerned with his mother's will which he had found puzzling. The first was why, since no inheritance tax was payable, the gift to him of a legacy of £150,000 was prefaced with the words "free of tax and duties". The second was why it contained a provision for the proportionate abatement of the legacies to the other beneficiaries in the event of a shortfall of funds, given the estimated value of £450,000 to £500,000 (as he had understood the estate to be worth from his meeting with the first defendant the previous month). The third was what in his witness statement he described as "the totally disproportionate amounts" bequeathed, on the one hand, to the RAF Benevolent Fund and, on the other hand, to the three other charities named in the will. It was left that he would meet the first defendant at the latter's offices in Eastbourne where the matter could be further discussed.
25. This led to a meeting between them which took place on 11 September at the first defendant's offices. In advance of that meeting the claimant had made a note of the points that he wished to raise. He had done the same in advance of his first meeting with the first defendant on 25 July.
26. One of the points raised for discussion at the meeting on 11 September was the will's abatement clause, namely the clause directing that if there should be insufficient monies in Mrs Bell's residuary estate to meet in full all the pecuniary legacies, other than the legacy of £150,000 to the claimant, then such legacies should be calculated "in the proportion that each such legacy payable to each of the said legatees shall bear to the total value of [Mrs Bell's] residuary estate". The claimant was puzzled by the inclusion of this clause given the evident size of the estate. His written question, set down in advance of the meeting, asked "how could a shortfall occur". According to his written note of the answer which the first defendant gave, and as he confirmed when questioned about this in his oral evidence before me, he was told by the first defendant that its inclusion was her own (ie the first defendant's) idea. This led to the claimant asking why she had done so which led in turn to the first defendant consulting the will file from which she produced copies of the three pages of notes in Mrs Bell's handwriting (referred to earlier) together with a fourth sheet consisting of a typed list of names and addresses with some manuscript amendments in Mrs Bell's handwriting. The claimant said that, on asking what the documents were and how she had come by them, the first defendant told him that his mother had given them to her to assist her to prepare the will.
27. The claimant said that he discussed the calculations with the first defendant, in particular the reference to "balance of £11,000 to RAFA" and the calculation which had resulted in the sentence "£191,000 left for disposal". He said, and I accept, that he pointed out to the first defendant that the £223,000 referred to by Mrs Bell as "personal allowance" but which, it was immediately recognised, referred to the then inheritance tax free amount of £223,000, was also available for distribution. His firm evidence before me, as reflected in his written note of the meeting, was that the first defendant accepted that there had "clearly been an error". His notes then state "tax-free sum also intended for me - sums wrong. Will write to RAFBF - only to get £11,000. Will get will corrected by court if they don't agree. County Court/High Court. Will sort it out for me in my favour. Estate will pay - counsel may be needed. Leave it to her". In his evidence before me, the claimant enlarged on those notes which I accept were written at the time of his meeting with the first defendant. In particular he said that he asked the first defendant if the £223,000 should be divided pro-rata between him and the other legatees to which, he said, the first defendant replied "no, it should all go to you. That was your mother's intention".
28. The first defendant dealt in her second witness statement with her meetings with the claimant. She had a note of meeting him on both 25 and 26 July 2000. She had no record of any discussion of the will when she and her husband called on him at Mrs Bell's former home in late August to hand over a cheque for Mrs Bell's car. As to the meeting on 11 September, her recollection was that the claimant thought that his mother had underestimated the size of her estate and wondered whether it might be possible to arrive at some sort of a deal with the RAF Benevolent Fund. His suggestion included his having a life interest in the (residuary) estate with the Benevolent Fund receiving it only on his death. She agreed to make an approach to the RAF to see whether they would be willing to strike a deal with him. In the event, she thought better of the idea and, instead, took counsel's advice.
29. In cross-examination the first defendant insisted that it was Mrs Bell who had asked for a legacy abatement provision to be included, although it was she (the first defendant) who drafted the clause as it appears in the will. She said that she could only recall having included such a clause on two or three occasions during her career. (She began practice in 1976.) She accepted that, given the size of Mrs Bell's estate, the clause was unnecessary. She said that she had recorded the instruction and would not have done so if its insertion had been her idea. She therefore disagreed with the claimant's note suggesting that the claim had been inserted at her (the first defendant's) suggestion. She saw nothing significant in the inclusion by her, in the gift to the claimant of his £150,000 legacy, of the words "free of tax and duties" (a phrase which she often inserted) but was unable to explain why a similar phrase which had appeared in the 1989 will in the gift of the pecuniary legacies (other than to the claimant) had not appeared in the equivalent gift in the 1998 will. She agreed that, prompted by the discussion of the legacy abatement provision, she had produced the three page notes in Mrs Bell's handwriting from her 1998 will file to see if anything contained in it would assist. She was therefore fully aware of the existence of those notes prior to her meeting with the claimant on that occasion.
30. She said that, yielding to the claimant's arguments on the matter, she saw force in his point that no express provision had been included in the will for what, according to Mrs Bell's handwritten calculation, was called her "personal allowance". She agreed that she accepted that there had been "a mistake" because Mrs Bell had not dealt with the £223,000 (ie the so-called personal allowance) but insisted that Mrs Bell had not given her any instruction about it. She said that it was because she wanted to assist the claimant that she agreed, although she later decided not to do so, to write to the RAF to see if there was a way of dealing with the matter.
31. In fact, rather than approach the RAF she decided to instruct counsel. She did so on 20 September. In her instructions she referred to Mrs Bell having "overlooked" the personal allowance of £223,000 in that there was no provision for it in the will, adding "×in fact no instructions were given by Mrs Bell as to the beneficiary for this". She asked counsel to advise "as to the approach to be made to the RAF taking into account Mrs Bell's intention" as evidenced by her handwritten notes "that the RAF should receive only the sum of £11,000 and not the substantial residue as provided for by the will". She said that, subject to counsel's advice, it was proposed that a letter should be written to the RAF stating that it was Mrs Bell's intention that it should receive only the sum of £11,000 and asked counsel, if he considered it appropriate, to settle the letter. In late November counsel delivered his advice expressing a view on whether the will could be rectified. He said that he did not consider that he could properly draft a letter to the Benevolent Fund as the first defendant had requested.
32. Against that background, I consider the three questions outlined in the passage from Re Segelman referred to above. The first and second questions are closely interrelated: did Mrs Bell intend to give the claimant a further legacy over and above the £150,000 in fact given (the claimant's primary case) or did she intend to confine her gift to the RAF Benevolent Fund to not more than £11,000 (the claimant's alternative case)?

The primary case

33. The contention that it was his mother's intention to give to him an additional legacy of £223,000 (or the equivalent of the nil-rate band) over and above the £150,000 legacy already provided by the will derives essentially from the following four matters: (1) the calculation on the first page of the written notes, in particular the fact that it identifies the amount of £223,000 (as a personal allowance) and refers to £191,000 as "left for disposal"; (2) a belief that Mrs Bell was aware that gifts to charity were free of inheritance tax; (3) the fact that a legacy abatement provision had been inserted in case there might be a shortfall of assets required to meet the legacies set out on page two of the notes (other than the legacy of £150,000 to the claimant) after deducting what was needed to cover inheritance tax and other expenses; and (4) certain of the remarks which the claimant understood the first defendant to have made at their meeting on 11 September 2000.
34. As to the first of those matters it is certainly odd that the first page of Mrs Bell's handwritten notes should refer to the £191,000 figure as being "left for disposal" and not some greater sum. It is true that, even if inheritance tax had been payable on the non-charitable legacies given by the will, there was bound, on Mrs Bell's own estimate of the value of her estate, to be a considerable difference between the sum which the RAF Benevolent Fund (as residuary legatee) would receive and the £150,000 given to the claimant and an even greater difference between the gift to the Benevolent Fund and the sums given to the other charities. There is, on the face of it therefore, force in the notion that Mrs Bell identified the sum of £223,000 not simply as a part of her estate which would be free of inheritance tax but also as a sum to be given away, no less than the £191,000 identified on page two.
35. As to the second of those matters, I regard as an open question whether Mrs Bell knew that gifts to charity are free of inheritance tax. The claimant seemed to think that she did. This was based on "discussions" with his mother said to have occurred in 1971. See paragraph 22 of his witness statement. But I am sceptical over the claim not simply because there was no particular reason why that matter should have been discussed at that time, let alone why the claimant should have recalled it all those years later, but also because the legacies set out on page two of the handwritten notes, including the three given to charity and the balance of £11,000 for the RAFA (if that too is a charity as to which see later) are all assumed to come out of what is left for disposal after inheritance tax has been paid. In short those gifts to charity are assumed by Mrs Bell to be subject to inheritance tax. The significance of the assertion that Mrs Bell did know that gifts to charity were inheritance tax-free is that, if she did, she must have intended the £223,000 to be given to a person rather than to a charity since, were that not the case, there would have been no occasion for her to make any deduction of inheritance tax in the calculation set out on page one of her notes.
36. As to the third of the three matters I prefer, for what the point is worth, the first defendant's evidence that it was Mrs Bell's suggestion that there should be a legacy abatement clause to the claimant's evidence, bolstered by the note that he took at the meeting with the first defendant on 11 September, that the idea for it came from the first defendant. The first defendant's evidence is supported by the fact that she recorded the matter in her attendance note of her meeting with Mrs Bell on 22 July along with the other instructions that Mrs Bell was giving to her. But Mr Rose's point about that clause was that, irrespective of whoever suggested it, the fact that it was included indicated a concern that Mrs Bell's net estate might not be sufficient to meet the legacies in full. That was consistent, he submitted, with a concern that, if Mrs Bell intended the claimant to have a legacy equal in amount to the nil-rate band as well as the £150,000 legacy mentioned in the handwritten notes, there might be a shortfall in the assets (after deduction of inheritance tax) needed to enable all of the legacies to be paid in full.
37. As to the fourth of those matters, the claimant placed much reliance on the first defendant's apparent acceptance, at her meeting with the claimant on 11 September, that there had "clearly been an error" and by the reference in her instructions to counsel that Mrs Bell "had overlooked" the personal allowance of £223,000. He also relied on her reported answer, in reply to his question about who was to receive the £223,000 and whether it was to be divided pro rata between all of the pecuniary legatees, that the whole amount was to go to him and that "that was your mother's intention" (being the exchanges reflected in the note he made at the meeting when he wrote "tax-free sum also intended for me. Sums wrong").
38. I am of the view that the first defendant was persuaded by the force of the points summarised immediately above, as put to her by the claimant at that meeting, into making assumptions about Mrs Bell's testamentary intentions which were highly questionable. Her opinion, if she expressed it, that Mrs Bell intended her son to receive the "tax-free sum" was, at the most, supposition on her part. This is because, as she made clear both in her instructions to counsel and in a letter to the claimant dated 2 October 2000 and as I accept, Mrs Bell did not give her any instructions regarding the £223,000 and, as the letter made clear, strong evidence would be needed that Mrs Bell had an intention to leave that sum to him. This is inconsistent with the first defendant having any particular reason for thinking that that was Mrs Bell's intention. Moreover, I am very doubtful whether, at the time of her meeting with the claimant, the first defendant had any clearer recollection of what occurred between herself and Mrs Bell when she took the latter's instructions for the 1998 will two years earlier than she did when giving evidence before me eighteen months later.
39. But whether Mrs Bell did intend to give the claimant a further legacy of £223,000 must be viewed against a wider canvas. In particular it must be viewed against her earlier (1989) will and the full and careful instructions she gave the first defendant for it; the nature of her relationship with the claimant; the likelihood of Mrs Bell wishing to provide for her son in so bizarre a manner (ie two legacies in the same will); and the likelihood that, if she had, she would have spotted that the will, as drafted and as later executed, had omitted that gift.
40. There is no doubt that, by her 1989 will, Mrs Bell intended to give residue to the Benevolent Fund. She herself used the word "residue" twice in the written instructions to the first defendant. She so provided notwithstanding that, according to the claimant, she and her late husband had earlier made mirror wills providing for their respective estates to go to the survivor of them and, if none, to the claimant. It was suggested by the claimant in his particulars of claim that, at the time she made her 1989 will, £100,000 (the amount of his legacy under that will) constituted the bulk of her estate, the inference being that the residuary gift to the Benevolent Fund would have been of little value. But there is no evidence, despite the claimant's attempts to find it (as evidenced by late disclosure) of what his mother's estate comprised in 1989. The fact that only 11 years later her net estate was worth £669,000 suggests that her assets were rather more, and in all likelihood substantially more, than just the £100,000 or so at the time of the earlier will. It was not credibly suggested by the claimant that his mother had enjoyed some huge windfall increase in her assets after 1989. He believed her to be a shrewd investor on the stock market and, despite her advancing years, to have formed a relationship, which was to her financial advantage, with a man ten years or more her senior. But all of this last was little more than speculation. So the overwhelming probability, in my view, must be that the gift of residue to the RAF Benevolent Fund, given by her 1989 will, was a gift of some value. That then seems to have been the position in 1989.
41. A striking fact is that from 1978 onwards there was effectively no contact between the claimant and his mother. They did not meet. They did not even speak over the telephone. He said that he sent her Christmas and birthday cards "most years". Mrs Bell lived in Eastbourne throughout her 29 years of widowhood. It had been her home during her married life as well. She travelled a lot. But she lived a life entirely separate from the claimant. Between 1971 and 1992 the claimant was based in London. In 1992 he went to live near York. It emerged that Mrs Bell probably never had his Yorkshire address: merely a commercial mailing address via a box number. This would explain why the typed list of names and addresses of legatees used on the occasion of the 1989 will and amended by Mrs Bell in connection with her 1998 will continued to refer to her son's West Ealing address even though he had left that address six years earlier. On the day after Mrs Bell's death, the first defendant wrote to the claimant to inform him of his mother's death, explain that she was the executor under her will and set out matters which were being immediately attended to following the death. She sent the letter to the address in West Ealing from which, unbeknown to the first defendant, he had long since moved. It was undoubtedly because of the lack of contact between the claimant and his mother and other relatives that, despite the efforts of the first defendant who went to considerable lengths to establish where the claimant could be found (her efforts included enquiries of Mrs Bell's relatives, approaches to the DSS and Passport Office and advertisements in two national newspapers for which he had worked), over three months were to pass before he learnt of his mother's death.
42. By mid-1998 Mrs Bell wished to review her 1989 will. That was the initial instruction to the first defendant. The extent to which, over the intervening period, her estate had increased in value (as it probably had) is wholly unknown. In the meantime, the absence of any direct communication between mother and son had continued. There is no evidence that her enthusiasm for the Benevolent Fund (and in particular her wish to make a gift to it in memory of her late husband) had diminished over the years or that her wish to benefit her son or others had correspondingly increased. It may be questioned, therefore, why, given that lack of contact, Mrs Bell should not only wish to increase by half the legacy to her son given by her 1989 will but should also want to give to him a separate and even larger legacy.
43. Aside from the continuing absence of contact and the lack of any obvious reason for Mrs Bell wishing to make so large an increase in the gift to her absent son, page two of Mrs Bell's three pages of handwritten notes refers merely to a £150,000 legacy to the claimant. The point is emphasised by the third page in which reference is made to a substitutional gift of that legacy if the claimant should predecease her. Why should she have limited that instruction to the £150,000 legacy if the claimant was intended to receive an additional legacy of an even greater amount? And what conceivable reason could Mrs Bell have had for wanting to provide for the claimant by two separate pecuniary legacies in the same will? The first defendant's attendance note of her meeting with Mrs Bell on 22 July also refers merely to a £150,000 legacy to the claimant.
44. The draft will was seen by Mrs Bell in advance of its engrossment and execution. Neither then nor subsequently did she express any disapproval of its terms. It is to strain credulity to suppose that this intelligent and financially astute woman, who was so meticulous in her legacy requirements (to the extent that she gave instructions, as reflected in the 1998 will, for what should happen to the legacies of £3,000 or more if the primary recipient should predecease her and what should happen if the first defendant as intended executrix and trustee should predecease her) should have overlooked, when she received the draft and later when she executed the engrossment, so substantial a matter as a legacy of £223,000. Such an omission would surely have been "blindingly obvious" (Mrs Talbot Rice's phrase on behalf of the Benevolent Fund) even to someone giving the draft (and later the engrossment) no more than a cursory glance.
45. Beyond the fact that Mrs Bell gave instructions for and executed wills in 1989 and 1998, lived in Eastbourne and, it is thought, liked to travel, there was no evidence about the kind of life that she led during the last 22 years or more of her life, what interested her, what plans she had, how she viewed her family, or what her attitude was to charity and to matters of inheritance. Indeed I was told remarkably little about the person whose testamentary intentions are in issue and nothing about her later life. For all that is known about her, Mrs Bell who, as the claimant pointed out, had acted in a number of family trusts, might well have envisaged life-time transfers up to the amount of her nil-rate band.
46. In the result I consider that it is no more than speculation to suppose that Mrs Bell had intended to make a specific gift to the claimant of £223,000 and that, by mistake, this was omitted from her will. I therefore reject the primary way in which the case is put.

The alternative case

47. The primary case assumes that Mrs Bell intended to make a separate gift of her nil-band rate, that the claimant was the intended beneficiary and that the first defendant was so instructed or failed to understand her instructions in that regard. The alternative case assumes either that she had no such intention or that, if she had such an intention, she failed to communicate it to the first defendant. It focuses instead on her intention, said to derive from the phrase "balance of £11,000 to RAFA" appearing on page two of her handwritten notes, which it is contended, showed that Mrs Bell intended that the RAF Benevolent Fund should only receive a legacy of £11,000 and therefore should no longer take residue. The expression used, it is pointed out, is "balance" and not residue. "Balance" means balance of the £191,000 earmarked for legacies. If the only gifts to charity were those identified on that page of Mrs Bell's handwritten notes (ie £15,000 in all) the remainder of her estate (over and above the nil-band rate) would be taxable thus making sense, it is said, of the inclusion of the legacy abatement clause. That this was her intention is supported, it is said, by the first defendant's willingness, expressed to the claimant at the meeting of 11 September 2000 and by the course of action suggested by the first defendant in her instructions to counsel, to write to the RAF Benevolent Fund to say that it should only receive £11,000.
48. I am not persuaded that Mrs Bell intended to confine the gift to the RAF Benevolent Fund to £11,000 and had no intention regarding residue or, if she had one, gave no instructions to the first defendant about that intention. It assumes that Mrs Bell's reference to "RAFA", which are the initials of the RAF Association, a different body from the RAF Benevolent Fund, was in error for the RAF Benevolent Fund. It is not obvious why Mrs Bell should have made such a mistake. But, assuming she did, I do not see that it follows that she intended that amount to be the maximum that the Fund should receive. It could just as easily be Mrs Bell's way of working out how much of the £191,000 identified as "left for disposal" would be left over for the Benevolent Fund after providing for the various pecuniary legacies totalling £180,000 set out on that page of her notes. After all, if Mrs Bell was intending to do no more than give the Benevolent Fund a legacy of £11,000, it is difficult to see why she did not simply list it with the other legacies, including not least those to be given to the other three charities. But the RAFA reference is dealt with separately. This may quite plausibly be interpreted as indicating that it was not to be treated as a pecuniary legacy of that limited amount.
49. Over and above that, it is difficult to see why Mrs Bell should have omitted to inform the first defendant of the identity of the beneficiary of residue (assuming she had such an intention and that it was not to be the Benevolent Fund) given (1) her understanding of the concept of residue (2) the fact that her earlier will contained a gift of residue (3) that her 1989 instructions clearly identified the residuary legatee as the RAF Benevolent Fund and (4) that there is nothing other than the reference to RAFA and to an £11,000 balance to indicate that it was an aim of the review of her earlier will that residue, on any view a substantial and important item, should be dealt with differently from its treatment by that earlier will. It is all the more difficult to see why this careful person should have launched a review of her will if, in truth, she had not made up her mind over who was to receive her residuary estate. Assuming she had an intention to make a gift of residue to someone (or to some entity) other than the RAF Benevolent Fund it is curious that she failed to pick this up when she was sent the draft of the will on 7 August or when she executed the engrossment of it three days later. Skilfully though Mr Rose advanced this alternative, I reject it as no less speculative than the claimant's primary case.

Result

50. Speculation as to a person's true intention is an insufficient basis on which to rectify his will in which, in a formal way, that person is presumed to have set out his testamentary intentions. In this case I must be satisfied on the balance of probability that Mrs Bell's 1998 will did not reflect her intentions. I am not so satisfied. It follows therefore that the claim should be dismissed.