High Court Rules On Will Containing Incorrect Clause

Decision Rectifies Error In Drafting Of Document


The High Court has handed down a judgment in a case which revolved around the incorrect inclusion of a clause in a man’s Will.

The testator, Mr Huntley, executed a Will in 2010. He died in 2011 in a motorbike accident and his estate was valued at around £6.9m, including a 90% holding in an unquoted company worth around £5.4m.

Mr Huntley had taken advice on the contents of his Will from a solicitor, particularly with a view to mitigating the impact of inheritance tax by utilising business property relief and the nil rate band, which currently stands at £325,000. However the advice he received and the summary of the Will that he was given were not accurately reflected in the Will itself.

It emerged that the lawyer who drafted the Will had used a precedent and had not amended it appropriately. The upshot was that a clause was wrongly included and the Will failed to meet the stated objective of providing for a nil rate band discretionary trust to take in the business assets, topped up by the other remaining assets.

The executor of the Will and the trustees of the trust applied for the court to set the matter right by construction and/or rectification. Mr Huntley’s cohabitee, two young children and three adult children were parties to the proceedings and broadly supported the requested revision.

The court applied the Supreme Court’s decision in Marley v Rawlings earlier this year and sought to identify the intention of the testator by looking at the other available documents. The court concluded that the Will could be interpreted as if the offending clause was omitted and this would then fulfil Mr Huntley’s intentions.

There was therefore no need for rectification in this case, but it would have been available if necessary.

Expert Opinion
This is one of the first cases on this issue since the high-profile Marley v Rawlings case, where two mirror wills were mixed up and signed by the wrong people.

"There has been concern amongst experts that Marley v Rawlings will open the floodgates to litigation in this area as the law has been relaxed.

"However, the outcome in Brooke v Purton is undoubtedly that justice has been done for all concerned. The case also serves as a warning regarding the dangers of using precedents blindly and the importance of instructing an expert."
Julia Burns, Associate