Lawyers succeed in having a will rectified following a contested trial

At his previous firm new partner Paul Grimwood recently succeeded, following a contested trial, in having a will rectified despite the evidence of the solicitor who drafted it that it correctly reflected the testator’s wishes.

Re Nodes decd; Eade v Hogg [2021] EWHC 1057 (Ch) pushes the boundaries of statutory rectification of wills, following criticism of the solicitor who failed to make proper attendance notes when taking instructions from an elderly testator making changes to his will.

The deceased owned 91% of the shares in a family company, formerly an undertaking business.  Under his previous will he left 26% of the shares in the company to his wife and a further 26% to the claimant, his friend, long term business associate and fellow director.

When the will was updated in 2015, it was changed so that it merely gave the executors power to appoint to the deceased’s wife and the claimant so many shares in the company as would when added to the existing shareholdings of both of them, amount to 26%, suggesting a major change from 26% each to 26% between them, and introducing a discretionary element which had not been there in the previous will.  The solicitor was adamant that this was what the deceased had expressly instructed, despite there being no contemporaneous record of any such instructions, despite the deceased’s wife – who was present at all appointments – being equally adamant that her husband had not intended any such change, despite various statements made by the deceased and his wife at the time confirming that the claimant would receive the full 26%, and despite expert handwriting evidence confirming that, in the process of the will being drafted the solicitor had at one stage written “each”, which had then been wrongly transcribed as “both”.

The Court rejected the evidence of the solicitor, described in the judgement as “frankly unsatisfactory” who it was said “did not give impartial evidence to assist the court”, but “advocated his position”.

The court held that the use of the word “both” was capable of being interpreted as “each”, in the light of the extrinsic evidence of the deceased’s intentions admissible under s.21 of the Administration of Justice Act 1982 but would alternatively be rectifiable to “each” as a clerical error. The discretionary power of appointment was found to have been introduced by the solicitor and amounted to a failure by the solicitor to understand his instructions under s.21 (1)(b) of the 1982 Act.

Speak to our Family Disputes Team

Paul Grimwood is a Partner in the family dispute team at IBB Law and as such is able to provide advice if you find yourself in this situation.  Contact Paul on paul.grimwood@ibblaw.co.uk or call 01494 790047.