Kell v Jones & Ors, England and Wales High Court (Chancery Division), Judgment, Law, casemine.com

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Attorney(S)

Counsel for the Claimant: MR. CLARK
Counsel for the 16th , 17th , 18th & 19 Defendants: MR. LEARMONTH

Judges

JUDGE COOKE

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Kell v. Jones & Ors

Smart Summary

Factual and Procedural Background

This is a claim for rectification of the will of the deceased testatrix, dated 15th December 2010, who died shortly thereafter. The claimant is one of the two executors named in the will and also a beneficiary. The defendants are the other beneficiaries, including 15 named relatives and four charities. The will provided for specific money legacies to these beneficiaries and charities, and the residue was to be divided equally among the beneficiaries named in the relevant clause, surviving the testatrix. The claimant alleges an error in the will: the testatrix intended the residuary estate to be divided only among the family members and not the charities. The claimant paid the legacies to the charities and invited them to agree to a distribution excluding their share of the residue, but they refused, leading to this claim for rectification.

Legal Issues Presented

What were the testatrix's intentions regarding the disposition of the residuary estate?
Whether the will, as drafted, fails to carry out those intentions?
Whether the failure to carry out the testatrix's intentions is due to a clerical error or a failure to understand instructions as defined under section 20 of the Administration of Justice Act 1982?

Arguments of the Parties

Appellant's Arguments

The claimant relies on the evidence of the solicitor who took instructions from the testatrix, asserting that the testatrix intended the residue to be divided only among family members, excluding charities.
The claimant argues that the will, as drafted, fails to reflect this intention.
The claimant contends that the error should be classified as a clerical error or failure to understand instructions, thus justifying rectification under the statute.

Appellees' Arguments

The charities accept that the solicitor formed the impression that residue was to be divided among family only but argue this was an assumption rather than convincing evidence of the testatrix’s true intention.
They submit that the solicitor’s drafting reflected his understanding at the time and was not a clerical error but a deliberate choice of words based on his mistaken belief.
The appellees maintain that the error was not inadvertent and thus does not fall within the statutory definition of clerical error.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re Segelman [1996] Ch. 171	Framework for rectification claims under s.20 Administration of Justice Act 1982, including burden and standard of proof.	Adopted as the agreed approach to determine testator’s intention, whether will fails to carry out intention, and whether failure is due to clerical error or failure to understand instructions.
Re Morris (1970)	Definition and scope of 'clerical error' prior to 1982 Act; distinction between errors of inadvertence and errors involving applied mind.	Used to explore the meaning of clerical error and to confirm that inadvertent errors may be rectified but deliberate mistakes or considered drafting errors may not.
Wordingham v Royal Exchange Trust	Clarification that 'clerical error' means error in recording intended words, distinct from errors in choosing words or misunderstanding instructions.	Confirmed the statutory interpretation of clerical error and distinguished it from failures to understand instructions; applied in assessing the nature of the solicitor’s error.
Pengelly v Pengelly [2008] Ch 375	Consideration of clerical error in cases of omission versus inclusion of words.	Referenced in discussion about whether omission of words can constitute clerical error; court found distinction not decisive in this case.

Court's Reasoning and Analysis

The court first examined the testatrix's intentions through the evidence of the solicitor who took instructions and prepared the will. The solicitor’s attendance note, the testatrix’s handwritten notes, and supporting witness statements collectively constituted convincing evidence that the testatrix intended the residuary estate to be divided only among the 15 family beneficiaries, excluding the charities.

Next, the court considered whether the will, as drafted, failed to carry out those intentions. Both parties agreed it did. The solicitor believed the wording in clause 6 limited the residue to individual beneficiaries, but the court did not accept this interpretation as conclusive.

The critical issue was whether the failure to reflect the testatrix’s intentions was due to a clerical error or a failure to understand instructions within the meaning of section 20 of the Administration of Justice Act 1982. The court reviewed authority on the meaning of 'clerical error,' emphasizing that it refers to inadvertent errors where the draftsman’s mind was not applied to the particular clause.

Evidence showed that the solicitor deliberately chose the wording in clause 6, based on his mistaken but considered belief about its effect. This was not an inadvertent or mechanical error but a deliberate drafting decision. The court rejected the argument that the error was one of omission or inclusion that could be classified as clerical error.

Consequently, the court held that the statutory power to rectify does not extend to errors arising from an erroneous but deliberate choice of words or a known misunderstanding of instructions.

Holding and Implications

The court DISMISSED the claim for rectification.

The direct effect is that the will as drafted stands, entitling the charities to a share of the residuary estate. The court expressed regret that it could not fulfill the testatrix’s intentions due to the statutory limits on rectification powers. No new precedent was established, and the decision reinforces the principle that rectification under section 20 requires the error to be inadvertent or due to failure to understand instructions, not deliberate mistaken drafting.