Roger Smith in Christopher Lines v Mark Porter & Ors

Thu, 03 May 2012

HHJ Simon Barker QC Chancery Division 22 July 2011
Wills and Trusts Law Reports, [2012] W.T.L.R. 629.
1.    This appears to be the only will rectification case where the error (which the Judge held to be “clerical”) was a failure to delete a standard form proviso from a draft will, also the only such case in which instructions were taken by a will writing company. Additionally it gives guidance as to the evidence which will satisfy the burden of proof for will rectification.
2.    Mr. and Mrs. Lines made “mirror wills”, each leaving his / her share in their home (held as beneficial tenants in common) to the other, subject to the survivor’s right to occupy for life. She died first and he claimed rectification of her will to remove a proviso that the right of occupation was “until re-marriage or cohabitation” (“the contested wording”). The claim (opposed by other beneficiaries) succeeded.
3.    A representative of “Sovereign” (a will writing company which acted in association with solicitors) had seen Mr. and Mrs. Lines on 14/11/02 at their home where they signed a will questionnaire which recorded that (as they told the representative) their shares in the home were to be left “in trust to each other with lifetime use”. The wills were drafted by agents of the solicitors who inserted the contested wording as part of a standard form clause in each draft. On 29/12/02 Mr. and Mrs. Lines executed the wills without noticing the addition of the contested wording and without amendment. Mrs. Lines’ will was still in effect when she died on 9/12/04.
4.    The Judge accepted Mr. Lines’ evidence that the effect of remarriage or cohabitation on the right to occupy was not discussed and held the contested wording was left in the drafts because specific instructions were not taken on the point and as a result of a procedure adopted by Sovereign and the solicitors whereby that wording (“the default setting”) was to be included unless there was an express instruction to omit it, so the draftsman would have left it in the wills because the questionnaire did not say it had to be taken out. The non-deletion of the contested wording was a “clerical act” arising from a “clerical procedure” (and was, incidentally, an example of “wording not deleted in circumstances where the draftsman had not applied his mind to its significance or effect” – Chadwick J in Segelman).
5.    There was no direct evidence as to whether Mrs. Lines read her will (and if so whether she noticed or understood the contested wording) before she executed it, but the Judge held that the burden of proving that “the will as expressed does not record the instructions given because of error or misunderstanding” (Norris J in Sprackling) was satisfied on the available evidence (which included the facts that Mr. and Mrs. Lines “trusted the solicitors to know what they were doing and to give effect to the instructions which they had been given” and Mrs. Lines did not mention the contested wording to Mr. Lines before she executed her will).

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