Charities defend claim to exclude them from residue: Pead v Prostate Cancer UK & Ors

The case of Pead v Prostate Cancer UK & Ors [2023] EWHC 642 (Ch) concerns a rectification claim brought by family members in an attempt to exclude charitable beneficiaries from receiving the gift of residue left to them under the will.

The claimant sought an order for rectification under section 20 of the Administration of Justice Act 1982 on the basis that the charities' inclusion as residuary beneficiaries was a mistake.

The court was also asked to determine a subsidiary question of construction concerning the division of the residuary estate between the beneficiaries.

Background

James Murray McKay (the Deceased) died on 11 February 2021 leaving the will executed on 3 August 2016 (the will) as his last will.

The Claimant, Steven Pead, is the stepson of the Deceased. The Deceased also had three further children from his first marriage whom he specifically excluded from the will due to their being estranged for many years.

By clause 4 of the will, the Deceased made gifts of differing financial value, with clauses 4.1 to 4.3 comprising gifts to members of the Deceased's step-family and clauses 4.4 to 4.8 comprising gifts to four different charities.

By clause 11, the Deceased bequeathed his residuary estate to his trustees "for such of the beneficiaries named in Clauses 4.1 to 4.8 … in accordance with the provisions relating to each gift".

The Claimant asked the court to rectify clause 11 of the will so as to restrict the residuary legatees to the family members listed in clauses 4.1 to 4.3 only, arguing that it was the Deceased's intention that only family members were to share in the residue of his estate.

This claim for rectification was opposed by the charities, and it was contended that on a proper construction an equal division between all beneficiaries named in clauses 4.1 to 4.8 was appropriate.

As a subsidiary question, the Claimant then asked the court to determine how the words "in accordance with the provisions relating to each gift" were to be construed in order to clarify whether the residuary estate should be divided pro rata or equally between the residuary beneficiaries.

The judge's decision

Section 20(1) of the Administration of Justice Act 1982 provides that rectification may only be granted where the court is satisfied that the will fails to carry out the testator's intentions due to a clerical error or a failure to understand his or her intentions. In order to answer this question, the court must take into consideration all the extrinsic evidence as to the deceased's intentions.

The Claimant relied heavily on the evidence found in a typed attendance note written by the attending solicitor responsible for drafting the will. The note recorded that the residue was to be divided by "those people [mentioned] in clauses 4.1 to 4.8".

The Claimant advanced the argument that the use of "people" was distinctive and that in ordinary and legal language, people differ from organisations and charities. However, further evidence in the form of manuscript amendments by the Deceased on an initial draft of the will recorded that the residue be "[divided] between all those mentioned in clause 4.1-4.8".

Having considered the evidence as a whole, Deputy Master Teverson concluded that he was not satisfied on the balance of probabilities or with a sufficient degree of confidence that the deceased intended for his residuary estate to be divided amongst the family members only. The rectification claim therefore failed.

However, turning to the second subsidiary question, in Deputy Master Teverson's judgment the evidence did show on the balance of probabilities that it was not the Deceased's intention that the residuary estate be divided in equal shares between all those mentioned in clauses 4.1 to 4.8.

In coming to this conclusion, the Deputy Master referenced Lord Neuberger's statement in Marley v Rawlings [2015] AC 129 that the court should follow the approach used when interpreting a contract when interpreting a will, even though a will is made by a single party.

The court must therefore seek to ascertain the intention of the party making the will by identifying the meaning of the relevant words. Furthermore, if any of the three requirements found in section 21(1) of the Administration of Justice Act 1982 are satisfied, direct evidence of the testator's intention will be admissible.

Deputy Master Teverson, whilst recognising that the wording of clause 11 was ambiguous, did accept that the phrase "provisions relating to" could be interpreted as referring to the proportions or amounts of each gift, albeit in clumsy language.

Whilst counsel for the First, Second and Third Defendant submitted that the structure of clause 4 suggested the residuary estate was to be divided equally by sub-clause, it was the Deputy Master's opinion that if equal division had been intended it would have been by named beneficiary and not sub-clause.

Deputy Master Teverson also attached great weight to the fact that the pecuniary legacies under clause 4 differed in amount, considering that this made it much more likely that the Deceased intended his residuary estate to be divided pro rata between the beneficiaries in accordance with the size of their legacies. Evidence in the form of a reference in the attendance note of the solicitor who drafted the will was also excluded.

The note referred to the residue being distributed "in equal shares", however this was considered unreliable extrinsic evidence due to the reference to equal shares being added to the note as the solicitor's inference without the method of division having been explicitly discussed by her with the Deceased.

The Deputy Master therefore held that it was not possible to construe clause 11 as providing for division in equal shares in the absence of other reliable extrinsic evidence supporting such a conclusion.

Points to note

The proceedings relied heavily on the witness evidence provided by the two solicitors who were responsible for drafting the will at the time, consisting of witness statements detailing their recollection of instructions taken and attendance notes written when initially instructed to draft the will.

Though the counsel for the Claimant is not usually permitted to cross-examine their own witness, at the beginning of the trial Deputy Master Teverson was asked to give permission for the cross-examination one of the solicitors by the Claimant's counsel.

The basis of the request was that in substance and reality the witnesses were not witnesses being called by the Claimant, their statements having been prepared by their own solicitors who were the same firm responsible for drafting the Will.

Deputy Master Teverson accepted this submission, referring to the judgment of Miles J. in Ocado Group plc v McKeeve[2021] EWHC 3542 (Ch) and explaining that in his opinion the witnesses' position was similar to that of an attesting witness who is treated by the probate court not as a witness of either party but of the court.

The court was entitled to take this approach in a probate claim in order to further its own interests in the administration of justice by seeking to understand the events as completely as possible.

How we can help

Please contact Caroline Walford-Cowley if you would like further information in relation to rectification claims or have any queries concerning the construction of a will.