Joshi & Ors v Mahida [2013] EWHC 486 (Ch)

[2013] EWHC 486 (Ch)Case No HC12F02367
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of JusticeDate 8 th March 2013
Strand. London. WC2A 2LL
Before
JONATHAN GAUNT QC(Sitting as a Deputy Judge of the Chancery Division)
Between
(1) ASHWIN JOSHIClaimants(2) JAGDISHBHAI PATELClaimant(3) ARJUNSINH MAHENDERSINH MAHIDAClaimant(4) SHAILESSINH ARJUNSINH MAHIDAClaimant(5) KALPESH KUMAR ARJUNSINH MAHIDAClaimant(6) UPENDERSINH ARJUNSINH MAHIDAClaimantDHANLAXMI KIRIT KUMAR MAHIDADefendant
Sidney Ross (instructed by Markand & Co) for Claimants for The Defendant did not appear and was not representedHearing Hearing date: 7 th March 2013
JUDGMENTJonathan Gaunt QC:
[1]This is a claim under section 20(l)(a) of the Administration of Justice Act 1982 for rectification of the Will dated 17th July 2002 of Kiritkumar Mahendersinh Mahida. The Testator died on 2nd May 2006 having duly executed the Will, which was his last Will. By clause 2 he appointed the First and Second Claimants to be his executors and trustees. The Third to Sixth Claimants are the beneficiaries who stand to gain by the present claim. The Defendant is the Testator’s widow and stands to be adversely affected by the claim. The Will was unsuccessfully challenged by the Defendant on the grounds of lack of testamentary capacity and want of knowledge and approval and was pronounced for in the Chancery Division of the High Court on 3rd December 2010. Probate was subsequently granted to the First and Second Claimants on 16th December 2011. The Grant of Probate contained a certificate stating the gross value of the Estate at £964,247 and its net value at £513,682.[2]By the Will the Testator appointed the First and Second Claimants as his executors and trustees. By clause 3(a) he devised his property at 5 Cromwell Road, Forest Gate after payment of all the mortgages registered against the property to his brother Aijunsinh Mahendrasinh Mahida and his three sons absolutely in equal shares and directed his executors and trustees to sell that property and that the proceeds of sale should be divided equally between his brother and his brother’s three sons.[3]By clause 3(b) the Testator devised and bequeathed all his personal property of whatsoever nature, including all his personal savings and investments and personal belongings to his brother.[4]Clause 3(c) is the provision sought to be rectified in these proceedings. It reads:
“I GIVE DEVISE AND BEQUEATH one half of my share in the property at 148 150 and 152 Leytonstone Road London E15 1UA to my brother [and his three sons] for their own use and benefit absolutely in equal shares.”
[5]By clause 3(d) the Testator devised and bequeathed the remainder of his property of whatsoever nature both real and personal including his share in the property at 65 Westbury Road, Harlow to his wife, the Defendant. I was told that the Testator and his wife had separated in about 1998 and that he had continued to occupy the former matrimonial home at 5 Cromwell Road, whereas she had gone to live at 65 Westbury Road, Harlow.[6]Clause 4 of the Will provided as follows:
“I DIRECT my executors and trustees to sell my share in the property at 148 150 and 152 Leytonstone Road ... and also to sell my property at 5 Cromwell Road and that the proceeds of the sale are to be distributed in equal shares to my brother and his three sons mentioned herein and I further direct that my wife ... should not be entitled to any interest in the property at 5 Cromwell Road or my share in the freehold property at 148 150 and 152 Leytonstone Road aforesaid including the business in respect of any of my savings or investments held in my sole name”
[7]It will immediately be apparent that the terms of clause 3(c) and clause 4 of the Will are inconsistent. Clause 3(c) provides for the Testator’s brother and his three sons to have “one half of my share” in the Leytonstone Road property. The other half share is not mentioned and would go to the Testator’s widow under the residuary gift in clause 3(d). Clause 4, however, envisages that whole proceeds of the sale of the Testator’s share in the Leytonstone Road property going to his brother and the brother’s three sons and states in terms that his widow should not be entitled to his share in the Leytonstone Road property. Something has obviously gone wrong.[8]These proceedings were issued on 12th June 2012 for rectification of the Will by substituting for the words “one half of my share” in clause 3(c) the words “my one half share”. The claim was therefore brought within 6 months of the date of the grant of probate. The Defendant acknowledged service and filed a Defence and Counterclaim dated 25th June 2012 in which she took the point that some aspect of the Will constituted a fine or forfeiture which was rendered illegal by the Bill of Rights 1689. A case management conference was fixed for 29th November.[9]On 20th November the Defendant made an application to set aside the judgment (presumably in the probate action) on the ground that she had not been given an opportunity to be heard. On the 29th November Master Marsh gave directions for the hearing of the rectification claim and also directed that upon the hearing of the Defendant’s application the Defendant should show cause why her “Defence and Counterclaim” should not be struck out. The Defendant’s application came on before Master Marsh on 3rd January 2013. The Defendant did not attend and her application was dismissed and her Defence and Counterclaim struck out and the Defendant was ordered to pay the Claimants’ costs of the application and hearing. On the hearing of the substantive claim for rectification the Defendant again did not attend and did not adduce any evidence in opposition to the claim.[10]Section 20(1) of the Administration of Justice Act 1982 provides: “If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence — a) of a clerical error; or b) of a failure to understand his instructions, it may order that the will be rectified so as to carry out his intentions.” a) of a clerical error; or b) of a failure to understand his instructions,[11]Sub-section (2) provides that an application for an order under the section shall not, except with the permission of the Court, be made after the end of the period of 6 months from the date on which representation with respect to the estate of the deceased is first taken out. That condition is satisfied in this case.[12]In Re Segelman [1996] Ch 171, Chadwick J identified the correct approach to the application of this section as consisting of three stages:(i) to identify what the testator intended;(ii) whether the provision in question fails to carry out the testator’s intentions; and(iii) whether that failure is in consequence of a clerical error or a failure to understand his instructions or has come about for some other reason. I must, therefore, first consider the evidence as to the Testator’s intentions.[13]The evidence consists of a Witness Statement by Mr Markand Upadhyaya (“Mr Markand”), a solicitor who had been practising from offices adjacent to the Testator’s matrimonial home at 5 Cromwell Road since 1st September 1980. Mr Markand had known the Testator since 1981 and had acted for him in connection with a shop in Dagenham and subsequently in connection with the purchase of the Leytonstone Road property, which was purchased jointly with his wife, the Defendant.[14]On 10th July 2002 Mr Markand received a request from a close friend of the Testator to visit the Testator in Whipps Cross Hospital as soon as possible. He asked a Mr Mangat, another solicitor who practised in the area and knew the Testator, to see what the Testator wanted and Mr Mangat told him that the Testator wanted to instruct Mr Markand’s firm to draw up a Will and wanted to speak to Mr Markand personally. Mr Markand exhibited Mr Mangat’s Attendance Note which recorded that the Testator had expressed a desire to leave his estate to his brother and three sons and had said that his wife owned a house, was entitled to a half share in the business and was well provided for.[15]On 11th July in the evening Mr Markand attended upon the Testator in hospital together with his secretary, Mrs Pamela Wimborne. The Testator then gave Mr Markand instructions as to the drawing up of a Will. Mr Markand’s contemporaneous Attendance Note records:
“Mr Mahida sais he wanted to deal with the estate he had as follows: (1) He wanted to give 5 Cromwell Road to his brother and his three children in equal shares. (2) He wanted to give all his personal property such as savings and investments to his brother Arjunsinh Mahendersinh Mahida. (3) He wanted to give his half share in the business and the property at 148/152 High Road, Leytonstone to his brother and three children. (4) He wanted to give the remainder of all his property both real and personal to his wife including 65 Westbury Road, Harlow. (5)...he wanted to divide the proceeds of sale of 5 Cromwell Road between his brother and three sons and his wife should not be entitled to any share or savings.”
The Attendance Note records the names of the brother and his three sons and where they lived.[16]Mr Markand explained to the Testator that he owned 65 Westbury Road and the Leytonstone properties jointly with his wife. The Testator said that he wanted to give 65 Westbury Road to his wife but that he wanted to divide the Leytonstone properties into equal shares and that his half share should go to his brother and three children. Accordingly Mr Markand advised Mr Mahida that it would be necessary to serve notice severing the joint tenancy in respect of the Leytonstone properties and the Testator gave him instructions to do so immediately.[17]Mr Markand duly prepared a draft Will and the following day in the evening attended again at Whipps Cross Hospital with a view to the Testator executing the Will. Mr Markand read the Will to the Testator who asked whether he could include a further trustee. He was told that this would involve the preparation of another Will. The Testator emphasised that he wanted his wife to get 65 Westbury Road only and a half share of the Leytonstone properties and a half share of the business conducted at those properties. Mr Markand gave the Testator a notice severing the joint tenancy of the Leytonstone properties and he signed it and then executed the Will. Mr Markand’s Attendance Note of this occasion recorded:
“He said that the ownership of 148/152 High Road should be divided into two parts at any cost and we should employ appropriate persons to serve notice on his wife and she should be made fully aware of the situation and the ownership of the property.”
[18]Mr Markand then prepared a new Will in which he added the second trustee in clause 2 and also added to clause 4 the direction that the Defendant should not be entitled to the Testator’s share in the Leytonstone Road properties, which wording had not appeared in the version executed on 12th July.[19]Following the attendance on his client on 12th July Mr Markand arranged for the signed notice of severance to be served on Mrs Mahida. The notice was served on the 15th July and on the 17th July Mr Markand applied to the Stevenage District Land Registry to sever the tenancy accordingly. On 19th July the Land Registry confirmed that the application had been completed and the joint tenancy duly severed.[20]It is absolutely clear from the above evidence and the contemporaneous Attendance Notes taken by Mr Markand that it was the intention of the Testator that the whole of his share and interest in the Leytonstone properties should go to his brother and the brother’s three sons and not to his wife. It is equally clear that clause 3(c) does not, as it stands, have that effect. The only question is therefore whether that mistake was caused by a “clerical error” within the meaning of section 20(l)(a) of the 1982 Act.[21]Since the Defendant was not present in Court and was not represented, I requested Mr Ross, Counsel for the Claimants, to direct my attention to the relevant case law on that question and thought it right to investigate whether a case could be made on the Defendant’s behalf that the mistake ought not to be categorised as a “clerical error”. It appears from the case law that the Courts have not approached the interpretation of that expression in the same way as they interpret the “slip rule” now to be found in Part 40 rule 12 of the Civil Procedure Rules and section 57 of the Arbitration Act 1996.[22]One might suppose that “clerical error” was confined to situations where a zero had been added to or omitted from a specified sum or a name or a date or a clause number had been incorrectly stated, i.e. a slip of the pen. The Courts have, however, interpreted the expression in this context more generously. One reason for this may well be that the jurisdiction to rectify is a very beneficial one in that it results in the testator’s intentions being honoured and gifts going to the parties to whom they were intended to go rather than resulting in an unintended beneficiary receiving a windfall and the intended beneficiary having to try to redress the situation by suing the solicitor who made the mistake.[23]In Wordingham v Royal Exchange Trust Co Limited [1992] Ch 412 it was held that “clerical error” means an error in the process of recording the intended words of the testator in the drafting or transcription of the will, with the result that the omission of a clause which appeared in an earlier Will which the Testator had wished to alter in other respects was held to be a clerical error; the missing clause had not been re-transcribed. In Re Segelman (cited above) the solicitor omitted to remove from a previous draft a clause which was inconsistent in effect with his subsequent instructions as to the beneficiaries. So it seems that if the solicitor in drawing up the new Will omits an earlier provision that was supposed to remain or omits to delete in a earlier provision in an earlier draft that has become inappropriate, those are regarded as clerical errors.[24]It is nevertheless clear that there is a category of mistake which is not caught by section 20. In Re Segelman at page 184H to 185B Chadwick J distinguished between three situations, the first two of which engage section 20 and the third of which does not:(i) The introduction of words into a will per incuriam without advertence to their significance and effect (“clerical error”),(ii) The introduction of words to which the draftsman has applied his mind but in relation to which he has failed to understand his instructions, and(iii) The introduction of words to which the draftsman has applied his mind with a proper understanding of his instructions but which (perhaps through failure properly to understand the law) did not achieve the objective which he and the testator intended.[25]In the present case Mr Markand plainly understood his instructions - hence his drafting of clause 4 - but made an inadvertent slip in the drafting of clause 3(c). Instead of saying “I give ... one half of my share in the [Leytonstone properties]”, it should have said “I give ... my one half share”, or simply “my share”, in the Leytonstone properties to my brother etc. I am quite satisfied that in accordance with the decided case law this qualifies as a “clerical error” and that section 20(l)(a) of the 1982 Act therefore applies. I accordingly order that the Will be rectified so as to substitute for the words “one half of myshare” in clause 3(c) the words “my one half share”. There will be no order as to costs.