England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY

		Bristol Civil Justice Centre 2 Redcliff Street, Bristol, BS1 6GR
		05/02/2018

HHJ Paul Matthews :

Introductory

1. This is my judgment on a claim for rectification of a notice of severance of joint tenancy of certain land dated 31 January 2007. However, that is not how the claim started. The claim form is dated 24 March 2017, when it was issued under part 7 of the CPR, for an order "to rectify the deed of variation dated 22 May 2015". That claim is amplified by the original particulars of claim dated 21 March 2017.
2. The family members concerned in this claim are the testator, William Gorwyn Lee, who on 24 January 1976 married the first claimant, Rosemary Lee, and had three children, Benjamin William Gorwyn Lee ("Ben"), Helen Ruth Lee and Rebecca Kim Lee. All the children are now adult. The testator died on 24 October 2013, having made his last will dated 14 September 2011, which was proved in the Bristol District Probate Registry on the 24 September 2014. The claimants are the named executors.

Background

3. The testator and the first claimant lived at Little Hendra Farm, Looe, Cornwall, which they had bought in October 2002. They owned the property as beneficial joint tenants. It consisted of a farm bungalow and a number of surrounding fields. The whole of the property by the time of the testator's death in fact consisted of three registered titles, CL188508, CL193208, and CL245397. The first of these titles comprised a number of fields, including one known as "Village Field". The second comprised the farm bungalow and other fields, including two known as "Church Field" and "Borehole Field". The third title was only created in 2008, in circumstances which I will mention in a moment.
4. In 2007 the testator and the first claimant made wills in substantially similar terms, drafted by their solicitors. The basic idea was that, on the death of the first to die, the survivor would take the farm bungalow and the three named fields ("Village", "Church", and "Borehole") absolutely, and retain a half share in the remainder of the farm, while the other half would go to their son Ben. On the death of the second to die, Ben would receive the other half, the farm bungalow and the three fields. In order to achieve that, it would first be necessary for the joint tenancy subsisting between the testator and the first claimant in the land which they owned to be severed. Accordingly, a notice of severance was prepared by their solicitors, and signed by the testator and the first claimant. It was dated 31 January 2007. Unfortunately, it referred only to title CL188508. Accordingly, on the face of it the joint tenancy in the remaining parts of the farm remained unsevered.
5. As to the third registered title, part of the land bought by the testator and the claimant in 2002 was the subject of a conveyancing mix-up, which only came to light in 2005. The land agents concerned had used out of date maps, and as a result part of a field which the testator and the first claimant acquired from the vendor was registered as part of the title to land acquired by other purchasers from the same vendor, a Mr and Mrs Philp. Apparently, Mr and Mrs Philp refused to co-operate in redrawing the boundary. To resolve the problem, an application was made to the Land Registry Adjudicator, by solicitors instructed by the land agents' professional indemnity insurers. I return briefly to this question below, but it seems that the application was compromised. In January 2008 the incorrectly registered part of the field was finally re-registered as belonging to the testator and the first claimant, under a new title, CL 245397.
6. In 2011, the testator and the first claimant revised their wills, though, in relation to the farm, they made similar provision to 2007. By clause 4 of each will, Ben was entitled to the half share of the testator in the farm, excluding the farm bungalow and the three named fields, and by clause 5 the residuary estate was to go to the surviving spouse, in the event, the first claimant. No change was made to the position regarding severance of joint tenancy, and no specific attention was paid to the land in the third title, created in 2008.
7. As I have already said, the testator died on 24 October 2014. The notice of severance of 31 January 2007 related only to title CL 188508, and the testator's will of 2011 leaving a half share in the farm could not operate as a severance of the rest (Carr-Glynn v Frearsons [1999] Ch 236, CA). I record here for completeness that it was not suggested that the wills of the testator and the first claimant were made pursuant to an agreement for mutual wills, which might have operated as a severance: Re Wilford's Estate (1879) 11 Ch D 267.
8. Accordingly, titles CL 193208 (including the farm bungalow and two of the three named fields) and CL 245397 (the land the subject of the conveyancing mix-up) passed beneficially to the first claimant by survivorship. Ben received only the testator's severed half share of title CL 188508 (except for Village Field). If the notice of severance had related to all the land at the farm, the farm bungalow and the three named fields would have gone to the first claimant under the gift of residue (clause 5), and Ben would have received the testator's half share in the remainder of the farm under the specific gift to him (clause 4).
9. At the time of the testator's death, he and the first claimant had been considering with their solicitors possible further revisions to their wills, including reducing the land to be excluded from the gift of half the testator's land to Ben (only one named field instead of three). Because of the testator's death, that reduction fell through. However, the solicitors advised the preparation and execution of a (tax-neutral) deed of variation of the estate of the testator. This would have the same effect as a codicil executed by the testator, reducing the excluded land to the farm bungalow alone.
10. Such a deed was executed by the first claimant and the first defendant on 22 May 2015, within two years of the death, and so was effective for inheritance and capital gains tax purposes (see Inheritance Tax Act 1984, section 142, and Taxation of Chargeable Gains Act 1992, section 62). The intention was that Ben should receive the testator's half share in the three named fields (but the farm bungalow would still be excluded). This was clearly postulated on the basis that the testator and the first claimant had severed their joint tenancy in all the land forming part of the farm. However, since two of the three named fields had passed to the first claimant by survivorship, outside the will, the deed of variation did not achieve its objective. These problems were discovered during the administration, but only after the tax-neutral two-year period since the death had elapsed.

Procedural issues

11. It appears that, on discovering the problems, the initial idea of the solicitors was to seek to rectify the deed of variation itself. Draft particulars of claim to this end were prepared and sent to HMRC on 13 October 2016. On 1 February 2017, HMRC replied, declining to comment on the draft. On 24 February 2017 the claim form in this claim was issued, with the executors of the will as claimants, and Ben and HMRC as defendants. As I have said, at that stage the claim was one for an order to rectify the deed of variation. Ben of course did not oppose the claim.
12. HMRC confirmed that it did not object either, but it wished the court's attention to be drawn to certain case law. HMRC also said that it had not been correctly served in accordance with the Crown Proceedings Act 1947, ss 17(3) and 18 (requiring service on the Crown to be effected by serving the solicitor for the appropriate government department). Sensibly, however, it took no point on that. The testator's and the first claimant's daughters, Helen and Rebecca, were not joined, because they had no interest in the land concerned. Beneficially speaking, it was all between the first claimant and Ben.
13. The matter came before me on 5 July 2017 on a directions hearing listed on the court's own motion. HMRC notified the claimant's solicitors that it would not be attending the hearing. At that stage, the only evidence available to the court was a very short witness statement made the previous day by Edward Porter, a senior associate solicitor at the firm of solicitors which had acted throughout. But Mr Porter was not concerned in any of the events which had led up to the present position, and could give no direct evidence of any of it. At the hearing on 5 July, I commented that the evidence then before me of any mistake was extremely thin, and that, in any event, it seemed to me at least possible that it was the terms of the notice of severance which had caused the problem, rather than the terms of the deed of variation.
14. I was also concerned that this claim had been brought as a Part 7 claim, although there did not seem to me to be any significant dispute of fact, but there were no relevant witnesses to give evidence. I directed that the matter should proceed as a Part 8 claim, that (notwithstanding the part 8 procedure) the claimant should be permitted to amend the particulars of claim, and directed that further evidence in support of the claim be served, before being listed for disposal.

The evidence

15. Pursuant to my directions, further evidence has since been filed as follows. The first claimant made a witness statement dated the 14 August 2017. That statement sets out both the sequence of events and the intentions of herself and her late husband the testator in some detail. Secondly, there was a witness statement, also dated 14 August 2017, from Sarah Hargreaves, the solicitor who had drafted the will of 2011. Thirdly, there was a witness statement, dated 16 August 2017 from David Charlesworth, who had been the draughtsman of the 2007 wills. Fourthly, and at my request at the hearing of the application in November 2017, Rajvinder Kaur, a solicitor at the claimants' solicitors Michelmores LLP, made a witness statement dated 19 January 2018. This exhibited further office copy entries of the three titles concerned, showing the state of the register at different times. These office copy entries make good some of the points set out in the formal evidence. It also dealt with the adjudication proceedings.
16. The witness statement of the first claimant includes the following:

"7. Gorwyn and I gave much consideration to how we wanted our wills drafted and how our assets were to be dealt with on our respective deaths. Amongst other matters, it was our desire and intention that on the death of the first of us, our son, Mr Benjamin William Gorwyn Lee ('Ben'), would inherit half of Little Hendra Farm, but excluding the farm bungalow and 3 fields, namely, Village Field, Church Field and borehole Field (together the '3 fields'). It was our intention that the farm bungalow and the 3 fields would then be left to the survivor, namely, Gorwyn or myself. On the death of the survivor, the remainder of Little Hendra Farm (including the farm bungalow and the 3 fields) was to pass to Ben. Gorwyn and I discussed this with David [Charlesworth] at a meeting on 17 August 2006. I also confirmed this in writing for David in my letter dated 12 December 2006…"

17. In fact, the letter dated 12 December 2006 referred to by the first claimant was a joint letter to Mr Charlesworth, signed by both the testator and the first claimant. In that letter they said this:

"We have given due consideration to the various points and are agreed that Ben on the first death would be left with almost half of Hendra Farm, excluding the bungalow and the 3 fields, marked on the map, near the village of Pelynt. These 3 fields would be left to the surviving partner, Gorwyn or myself. They would then go to Ben on the 2^nd death along with the bungalow."

18. The first claimant in her witness statement went on to say this:

"9. When redrafting our wills in 2006/2007, it was my understanding that Little Hendra Farm was registered under two Land Registry titles; namely, CL188508 and CL193208. Gorwyn and I had held the land under these titles as joint tenants.

10. In January 2007, David [Charlesworth] advised Gorwyn and I that we needed to sever the joint tenancy to enable Ben to inherit the farmland under our wills in the manner intended… He therefore sent to us a notice of severance to sign which we proceeded to do… It was my and Gorwyn's belief at the time that this was sufficient to enable Little Hendra Farm to pass to Ben under mine and Gorwyn's wills in the way described at paragraph 7.

11. In February 2007, the new wills were finalised by David and subsequently executed by Gorwyn and I (the '2007 wills')…"

19. The letter by which Mr Charlesworth advised the testator and the first claimant on the need to sever the joint tenancy was dated 22 January 2007. It enclosed two notices of severance for them to sign. One related to a different property for the benefit of their daughters. But the second notice related to the farm. The letter explained:

"Ben will inherit some of the farmland so again we need to sever the joint tenancy. I therefore enclose a second notice of severance for you both to sign in the same way."

20. The first claimant went on in paragraphs [13]-[19] of her statement to explain how the mistaken conveyance to Mr and Mrs Philps in 2002 of land which she and the testator had purchased had to be resolved by referring the matter to the Land Registry Adjudicator. The result was that in January 2008 the land

"which had been incorrectly conveyed to Mr and Mrs Phillips [was] correctly transferred to Gorwyn and I. We were registered as the freehold owners of the land on 24 January 2008. This created a third title number for land at Little Hendra Farm, namely CL 245397" (at [17]).

21. She concluded:

"18. At the time of drafting the 2007 wills, Gorwyn and I were aware that part of the field was not on our Land Registry titles, but the matter was still unresolved. We assumed that if it was eventually registered to us, then it would be covered under the terms of the 2007 wills as the 2007 wills did not specify the Land Registry title numbers."

22. In relation to the 2011 wills, the first claimant explained (at [21]) their

"intention to gift half of Little Hendra Farm to Ben but to exclude the farm bungalow and the 3 fields on first death continued. The clause reflecting this therefore remained in our wills."

She went on to say:

"22. I understand now that Sarah [Hargreaves] proceeded on the basis that the Land Registry titles had already been severed, but at the time I assumed that [the solicitors] were across all of the issues relating to the property which we proposed to leave to Ben."

23. At the end of her witness statement, the first claimant said this:

"35. I can confirm that neither I nor Gorwyn intended for Little Hendra to pass on the death of the first of us in the manner that currently exists. It has always been our intention that half of Little Hendra Farm would pass to Ben on the death of the first of us, but excluding the farm bungalow (and previously the 3 fields). When the survivor of us passes away, the remainder of the land at Little Hendra Farm was to pass to Ben; including the bungalow."

24. David Charlesworth, the draughtsman of the 2007 wills, and of the notice of severance, in his witness statement said the following:

"7. Mr and Mrs Lee were always very clear about their intentions in terms of how their assets were to be dealt with under their respective wills. With respect to the land at Little Hendra Farm … Mr and Mrs Lee decided, at the outset, that they would each pass their half share in Little Hendra Farm to their son, Mr Benjamin William Gorwyn Lee ('Ben') …

8. To implement their intentions in relation to Little Hendra Farm, Mr and Mrs Lee instructed me to structure their wills so that, on the death of the first of them, Ben would inherit half of Little Hendra Farm, but excluding the farm bungalow and 3 fields… The excluded items would be held by the survivor of Mr and Mrs Lee. On the death of the survivor, Ben was to inherit the remainder of Little Hendra Farm; including the items previously excluded…"

25. Mr Charlesworth explains (at [11] and [12]) that at the time the farm was held under title numbers CL188508 and CL193208, and that he believed that the latter title consisted solely of the farm bungalow, so that the remainder of the farm fell under the former. Since the bungalow was not being passed on the first death, he concluded that it was only the joint tenancy under title CL188508 which needed to be severed. That was why he referred only to that title in the notice of severance (see at [13]). Unfortunately, in his letter to his clients of 22 January 2007 (see [16] above of this judgment) he did not explain this. Instead, he referred to Ben's inheriting "some of the farmland". The testator and the first claimant were not to know that Mr Charlesworth was proceeding on a false basis, and not unreasonably thought that the notice would sever the joint tenancy in all the farmland in which Ben was to be given a half share.
26. Mr Charlesworth now acknowledges (at [14]) his error in thinking that title CL193208 only covered the farm bungalow. This resulted in the failure to sever the joint tenancy under title CL19328, despite the intention of the testator and the first claimant to pass all of the land at Little Hendra Farm as described above (see at [15]). Mr Charlesworth only became aware of the existence of the incorrect registration of the further field in April 2007 (see at [16]). As he says, if he had implemented the intention of the testator and the first claimant for the whole of Little Hendra Farm to pass as described above,

"this would inevitably have included the land registered under the third title number, CL245397".

27. Finally, Sarah Hargreaves, the draughtsman of the 2011 will in her witness statement set out the intention of the testator and the first claimant (at [8])

"that on the death of the first of them, half of Little Hendra Farm passed to their son, Mr Benjamin William Gorwyn Lee ('Ben'); excluding the farm bungalow and the 3 fields… The excluded items were to be held entirely by the survivor. On the death of the 2^nd of them, the intention was for Ben to inherit the remainder of Little Hendra Farm; including those items previously excepted."

28. Although Ms Hargreaves drafted wills for both the testator and the first claimant on this basis, she

"did not take steps to review the registered titles under which Little Hendra Farm was held by Mr and Mrs Lee as I assumed that David [Charlesworth] had already structured the land ownership in a way that allowed it to pass by will. I also proceeded on the basis that, having been advised by David previously, Mr and Mrs Lee knew how the land was held" (at [11]).

29. In particular, at the time of drafting the 2011 will, although her firm was aware of the existence of the third title, CL 245397, Ms Hargreaves was not. She became aware of this only in March 2015 (see at [20]-[21]). Even so, the deed of variation of May 2015 still did not take it into account (see at [22]).

The hearing

30. At the hearing before me on 27 November 2017 Mr Adam Corbin appeared for the claimants. The witness statements referred to above were received in evidence, although, since no notice was received from any defendant requiring it, none of them was tendered for cross-examination. So that evidence is unchallenged. I record formally that I see no reason to doubt the veracity of any of it, and accept it. In addition, I had the benefit of being addressed by Mr Corbin.
31. The first defendant was present in court in person, but did not address me, having already made clear in correspondence that he consented to the relief sought. The second defendant was neither present nor represented, having in correspondence expressed no objection. Subject only to rules of court (eg CPR r 19.2(2)), it is of course a matter for the claimants as to whom they join as defendants to their claim (see eg Dollfuss Mieg v Bank of England (No 2) [1951] Ch 33, 38). The usual reason for choosing to join a person as a party is in order to ensure that that person is bound by the result (see eg Vandervell Trustees Ltd v White [1971] AC 912). But there are other ways of achieving that object in cases involving trusts and estates, such as the notice procedure under CPR r 19.8A (though that requires a direction from the court). At all events HMRC played no part beyond asking for certain case law to be cited to the court (which Mr Corbin ensured was done, first by referring to it in his skeleton, and then at the hearing itself).
32. During the hearing, one matter which puzzled me was what had happened at the adjudication in the Land Registry. At the end of the hearing, Mr Corbin agreed that an enquiry would be made of the Land Registry, and further evidence would be filed about this. In correspondence after the hearing, Mr Corbin suggested that such evidence would be filed by 19 January 2018. On that date the witness statement of Rajvinder Kaur, an associate solicitor at Michelmores LLP. In that witness statement she explains what happened during the adjudication process.
33. The first claimant and the testator applied to the Land Registry Adjudicator for the boundary of their land to be adjusted as against Mr and Mrs Philp. But, before the adjudication could conclude, the parties entered into a settlement agreement, under which Mr and Mrs Philp agreed to transfer the disputed part of the land to the first claimant and the testator. This was done on 21 January 2008 by Form TR1. Unfortunately, the form executed first by Mr and Mrs Philp and then by the first claimant and the testator contained another error. In box 12 (declaration of trust) the person filling in the form had put an X against "The transferees are to hold the property on trust for themselves as joint tenants". The land so transferred was registered under the new title number CL245397.
34. The first claimant in her witness statement of 14 August 2017 says this:

"When this land was later registered under a completely new Land Registry title number, I do not recall whether the question of whether the land was held as 'joint tenants' or as 'tenants in common' was ever asked. At the time, Gorwyn and I did not understand the difference between the two concepts and the implications of this when drawing up our wills. We had assumed that, as we had instructed solicitors, they would have raised any possible issues. I now understand its significance. It was of course our intention that this land should pass to Ben in the same way as the rest of Little Hendra Farm."

Facts found

35. On the basis of the material and other evidence before me, I find the following facts. The intention of the testator and the first claimant, both in 2007 and in 2011, was that, on the death of the first of them to die, half of the farm would pass to Ben, excluding the farm bungalow and the three named fields, which were to belong to the survivor absolutely, and then, on the death of the survivor of them, Ben would inherit the remainder of the farm, including those items previously excepted. This meant that it was necessary for the beneficial ownership of the testator and the first claimant to become ownership in common rather than joint. In other words, there was a need for a severance.
36. The testator and the first claimant relied entirely on the solicitors to advise them how to bring that severance about. The solicitors prepared a notice of severance which their clients executed. The draughtsman made two different mistakes in the drafting. First, he made a mistake as to what was contained in title CL193208, so omitting it from the notice of severance. It is unclear from the evidence why he made this mistake. Second, he made a mistake as to the existence of the land purchased by his clients but accidentally included in the Philps' title, which later became contained in title number CL245397, and this too was not included in the notice. It is clear that he was not informed of the mix up relating to this land until April 2007, after the 2007 wills had been executed. But the testator and the first claimant claimed the right to have the register altered in their favour, and that right (which belonged to them jointly) was an interest, albeit uncertain, in the land concerned, which they owned at the time of the notice of severance and the making of the 2007 wills. It could therefore have been severed by an appropriately drafted notice.
37. The testator and first claimant did not notice these errors in the notice, and signed it. They believed that the notice of severance would be effective so as to allow their wills to operate as they intended, in relation to the whole of the land at Little Hendra Farm. They made a mistake as to the effect of the words used in the notice. When the wills of 2011 were drafted, the draughtsman made the incorrect assumption, without checking, that the joint tenancy in all the land had been severed. As a result, the testator and the first claimant executed their wills believing that they would be effective in relation to all the land forming part of the farm. This was not so. After the death of the testator, the first claimant and her son Ben executed a deed of variation to allow the testator's assumed half share in the three named fields to go to Ben, leaving only the farm bungalow to go to the first claimant absolutely. In this too they were defeated, because two of the three fields passed to the first claimant by survivorship, outside the testator's will.

The law

38. Mr Corbin referred me to a passage in Snell's Equity, 33^rd edition, at [16-013]. This begins by saying that "in general, a claim [to rectification] will succeed only if it is established, first, that there was some prior agreement between the parties…" However, there is no doubt that a document such as notice of severance, even if given unilaterally, under section 36 of the Law of Property Act 1925, may be rectified if the other necessary conditions are satisfied. There are of course many cases in the books of documents recording agreed transactions being rectified. There are perhaps fewer cases of documents recording unilateral transactions being rectified. But Re Butlin's ST [1976] Ch 251 is a well-known example of a case where a voluntary settlement was rectified on the basis that a power intended to be conferred upon the trustees was recorded in the settlement in a form which was more limited than the settlor had intended. There is no reason why the same principle should not apply to a unilateral notice of severance which does not correctly record the true intentions of the person or persons who made it. In fact, the notice in the present case was signed by both joint tenants, and so may properly be regarded as the result of an agreement between them.
39. As I have already said, HMRC asked that the court be referred to the decisions of the Court of Appeal in Racal Group Services Ltd v Ashmore [1995] STC 1151 and Alnutt v Wilding [2007] EWCA Civ 412. I have looked at both decisions. The necessary conditions for the remedy of rectification to be available laid down in the former case were summarised by Barling J in Giles v Royal National Institute for the Blind [2014] EWHC 1373, as follows:

"(1) While equity has power to rectify a written instrument so that it accords with the true intention of its maker, as a discretionary remedy rectification is to be treated with caution. One aspect of that caution is that the claimant's case should be established by clear evidence of the true intention to which effect has not been given in the instrument. Such proof is on the civil standard of balance of probability. But as the alleged true intention of necessity contradicts the written instrument, there must be convincing proof to counteract the evidence of a different intention represented by the document itself (1154h-1155b);

(2) There must be a flaw in the written document such that it does not give effect to the parties'/donor's agreement/intention, as opposed to the parties/donor merely being mistaken as to the consequences of what they have agreed/intended; for example it is not sufficient merely that the document fails to achieve the desired fiscal objective (1158f-g);

(3) The specific intention of the parties/donor must be shown; it is not sufficient to show that the parties did not intend what was recorded; they also have to show what they did intend, with some degree of precision (1158g-j);

(4) There must be an issue capable of being contested between the parties notwithstanding that all relevant parties consent. This criterion has been much criticised: the purpose of it, and its actual content and scope, are by no means clear. In Racal Peter Gibson LJ expressly approved the following summary of the principle by Vinelott J in the same case. Vinelott J stated that the court must be satisfied:

'that there is an issue capable of being contested, between the parties or between a covenantor or a grantor and the person he intended to benefit, it being irrelevant first that rectification of the document is sought or consented to by them all, and second that rectification is desired because it has beneficial fiscal consequences. On the other hand, the court will not order rectification of a document as between the parties or as between a grantor or covenantor and an intended beneficiary, if their rights will be unaffected and if the only effect of the order will be to secure a fiscal benefit." (1155c-1158b).'

For convenience, I can refer to these four points as Racal/Giles (1), Racal/Giles (2) etc.

40. I note that the effects/consequences distinction referred to in point (2) above at the date of the decision in Racal featured also in the law of rescission for mistake. But it has since been discarded for rescission by the Supreme Court in Pitt v Holt [2013] 2 AC 108, [116]-[135]. The present case is about rectification rather than rescission. Although rectification was also mentioned briefly in Pitt v Holt, I was not addressed on its significance in this case. So I leave the question of the impact of Pitt v Holt on Racal to a case where it matters.
41. As to Racal/Giles (1), in the present case there is "convincing proof" in the evidence of the first claimant, confirmed by that of Mr Charlesworth and Ms Hargreaves, that she and the testator wished to make wills leaving their severed half shares in all their jointly owned property, that for that purpose they needed first to sever the joint tenancy in that property, and that they accordingly relied on the solicitors to draft and prepare an appropriate notice for that purpose. They believed that the notice as so drafted and prepared would sever the joint tenancy in the whole farm, and in that belief they were mistaken because the notice only covered a part of the property.
42. As to Racal/Giles (2), it is clear that the notice as executed does not give effect to the agreement between, and intention of, the testator and the first claimant. It does not sever the joint tenancy in the whole farm (as they wished) but only in part of it.
43. As to Racal/Giles (3), it is also clear that the testator and the first claimant wished to sever the joint tenancy in the whole farm, because that was the basis upon which each of them would be able to leave a half share (subject to the excepted parts) of the entire property.
44. As to Racal/Giles (4), there is a clear difference in the result between the case where the notice of severance is rectified so as to apply to the whole farm and the case where the notice is not rectified. In the former case Ben would (subject to the effect of the later deed of variation) take a half share in the entire farm apart from the farm bungalow and the three named fields. In the latter case he would take a half share only in title CL188508 (apart from Village Field). That is plainly "an issue capable of being contested between the parties".
45. In Alnutt v Wilding [2007] EWCA Civ 412, the settlor executed a settlement in a written form drafted by his professional advisers which created a discretionary trust, although in order to achieve his object of saving tax he needed to make an interest in possession trust. Both the High Court and the Court of Appeal refused rectification. In the Court of Appeal, Mummery LJ (with whom Carnwath and Hooper LJJ agreed) said:

"[19] … The position is that the settlor intended to execute the settlement which he in fact executed … The mistake of the settlor and his advisors was in believing that the nature of the trusts declared in the settlement for the three children created a situation in which the subsequent transfer of funds by him to the trustees would qualify as a PET [potentially exempt transfer] and could, if he survived long enough, result in the saving of inheritance tax."

46. I add only that there does not appear on the evidence to be any clear tax advantage to be obtained from this rectification claim. The difference is only that if rectification is granted there will be a larger transfer of land to Ben at this stage compared to what would happen if there were no rectification (and there were subsequently a transfer of the same land to Ben on the death of his mother, the first claimant).

Discussion

47. This case is not like Alnutt v Wilding. The testator and the first claimant did not execute the notice intending to sever the joint tenancy in only that part of the farm which was referred to in the notice. They intended to sever the joint tenancy in the whole. They did not realise that the notice would only have limited effect and would not enable them to make the wills which they wished to make and subsequently executed. They did not therefore intend to execute the notice in the form in which in fact they executed it.
48. There is a difference between the mistake made by the testator and the first claimant on the one hand, and the mistakes made by the draughtsmen of the notice and the wills on the other. In 2007 Mr Charlesworth made two mistakes. First, he mistook which parcels of land were in which of the two registered titles to which the farm was subject. Because of that primary mistake, he considered that it would not be necessary to sever the joint tenancy in title CL193208, instead leaving it to the doctrine of survivorship to vest the farm bungalow in the first claimant on the testator's death. Secondly, he did not deal with the land the subject of the conveyancing mixup, which was not contained in either of the two existing registered titles, but which the testator and the first claimant had bought as part of the farm. That mix up was known at least to the testator and the first claimant from 2005 onwards, but it appears that the claim to the further land was not known to Mr Charlesworth before April 2007.
49. In 2011 Ms Hargreaves made the mistake of assuming that the joint tenancy in all the land forming part of the farm had been severed, when it had not. A simple perusal of the notice of severance coupled with a check of the (in 2011, three) registered titles of the farm would have revealed this. And, although she did not herself know about the further land at that stage, the firm undoubtedly did. It is unclear why that knowledge was not passed on.
50. However, notwithstanding the errors made by the lawyers, it is the mistake made by the clients, who actually executed the notice, that matters. The testator and the first claimant believed that the words used by their lawyers in the notice would achieve their object of severing the joint tenancy in the whole farm. That was their intention because, as they understood it, that severance was necessary in order for them to be able to make wills leaving half shares in the farm. If the notice of severance, instead of merely referring to title CL188508, had referred to some such phrase as "all the land comprised in Little Hendra Farm which we now own as joint tenants", that would have severed the joint tenancy in all of their land at the farm, including the land in which they only recovered the legal estate in 2008, as they intended, and the problems which have been encountered would have been avoided. In my judgment, the facts of this case amply satisfy the requirements for the rectification of the notice of severance so as to reflect the true intention of the parties, and I am prepared to make an order so rectifying it.
51. There is a final, smaller point, concerning the form TR 1 executed by Mr and Mrs Philp in favour of the first claimant and the testator on 22 January 2008, leading to the creation of the new title number CL245397. The evidence of Ms Kaur, to which I have already referred, makes plain that this form purported to transfer the land in the new title to the first claimant and the testator as joint tenants. But I have held that they intended that all their land at the farm should be held by them as beneficial tenants in common. The transfer to them of the new land was simply the product of their pre-existing right to have the registered titles of their and their neighbours' land altered to reflect the true position on the ground. The whole of their estate planning exercise depended on the severance of their beneficial joint tenancy which they intended to carry out in January 2007. The reference to "joint tenants" in this context is an obvious slip. Whoever filled in the form has simply not applied his or her mind to the facts.
52. In my judgment, I can and should construe the form TR 1 consistently with this context. Accordingly, the first claimant and the testator held the land in the third title on trust for themselves as tenants in common. If I were wrong about this, I would hold that the facts, involving as they do a failure to record the true intention of the parties, were such as to justify rectifying that form so as to alter the reference to 'joint tenants' to one to 'tenants in common'.

The alternative case

53. As I said, this claim was originally begun as one to rectify the deed of variation. But since the problems were caused by the notice of severance, it was not likely that rectifying the deed of variation would solve them. The focus of the claim needed to be on the notice of severance, as indeed it now is.
54. Nevertheless, the claimants still make an alternative case for rectification of the deed of variation, in case that for the rectification of the notice fails for any reason. They say:

(i) that the intention of the testator and first claimant was to transfer a half share in certain land to Ben on the death of the first of them to die,

(ii) that the deed of variation failed to carry out that intention and

(iii) that if rectified it would now do so.

55. I cannot accept this reasoning. The intention of the testator and first claimant to transfer a half share in land depended on there being such a half share in the first place. Whether there was such a half share or not depended on the efficacy of the notice to sever, and not on the deed of variation. If the notice for any reason did not work, the deed of variation could not substitute for it. On the death of the testator, his interest under the joint tenancy would have accrued to the first claimant by survivorship, outside the will. So varying the will of the testator (which is what the deed of variation purported to do) would have been nothing to the point. If this claim depended on rectifying the deed of variation, in my judgment it would fail.
56. I mention for completeness that there may in some cases be the possibility of making a post-death variation which reproduces the effects of a severance of joint tenancy effected before death: see eg Shah v Forsters LLP [2017] EWHC (Ch), [54]. In the present case, however, there was no suggestion in the evidence that this was what the deed of variation was intended to do. This is because at that time the need to correct the severance error had not yet been identified, and so the deed cannot be rectified in that way.

Counteracting factors

57. In my judgment, there are no factors in the case suggesting that the remedy of rectification, if otherwise available, should not be awarded. The fact that one party to the notice of severance has died since it was executed does not of itself mean that relevant third party rights have arisen to prevent rectification. This is, first, because any third party rights acquired would not have been acquired for value and without notice of the equity of rectification, and, second, because in fact the only persons now concerned are the first claimant and her son Ben, the first defendant, and they are united in seeking such rectification. Lastly, there is no question of delay or any other reason not to grant rectification.

Conclusion

58. Reverting to the notice of severance, in my judgment all the conditions for the award of the equitable remedy of rectification of that notice are satisfied. The exact form of the order can be considered with counsel when this judgment is handed down.