Harte, Re [2015] EWHC 2351 (Ch)

Case No HC-2014-001912[2015] EWHC 2351 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue 7 Rolls Buildings, Fetter LaneDate Wednesday, 15 July 2015
London, EC4A 1NL
Before
HIS HONOUR JUDGE HODGE QCsitting as a Judge of the High Court
IN THE MATTER OF THE ESTATE OF FLORENCE ROSEMARY HARTE (DECEASED)
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MISS ZOE BARTON (instructed by Gardner Leader LLP, Newbury) appeared on behalf of the Claimants
Judgment
Wednesday, 15 July 2015
(12.16 pm)

JUDGE HODGE QC:

[1]This is my extemporary judgment in litigation concerning the estate of the late Florence Rosemary Harte, deceased (Claim Number HC 2014 001912). The late Mrs Harte died on 26 October 2013 having made a will dated 10 November 2009. She was pre-deceased by her husband, Mr Patrick Joseph Harte. He had made a will in substantially the same terms as his wife, also on 10 November 2009, and using the same firm of solicitors situated in Newbury, the firm of Charles Hoile Solicitors. Mr Patrick Harte had died on 17 November 2012, some 11 months before his wife. Under the terms of his will, his wife was appointed as his sole executrix. Unfortunately, she lacked the requisite mental capacity to take out a Grant of Probate and, as a result, no Grant of Probate had been made in relation to Mr Harte’s estate by the time of Mrs Harte’s death. Under the terms of her will, and in the events that had happened, namely the fact that her husband had pre-deceased her, her will had appointed two of the partners in the firm of Charles Hoile Solicitors to be her executors and trustees. In consequence, the present Claimants, Mr Patrick James Stewart and Mr Michael James Davis, both solicitors, obtained a Grant of Probate to Mrs Harte’s estate on 19 June 2014. The value of the estate for probate purposes is in the order of £663,000. I am told no inheritance tax is payable because Mrs Harte is entitled to take advantage of her late husband’s relief, as well as her own. Having obtained probate of Mrs Harte’s will, the Claimants, Mr Stewart and Mr Davis, then succeeded in securing a Grant of Probate to Mr Harte’s estate on 29 August 2014.[2]By this Claim Form, which was issued on 16 December 2014, Mr Stewart and Mr Davis seek the true construction of Mrs Harte’s last will or, alternatively, rectification of certain provisions of that will. Prior to the issue of the Part 8 Claim Form, Chief Master Marsh had given the Claimants permission to issue the Claim Form without naming any defendants, pursuant to CPR 8.2A. The Claim Form recites that the Claimants are the executors of Mrs Harte’s last will dated 10 November 2009, and they ask the court to determine its true construction or, alternatively, seek its rectification.[3]Following the issue of the Claim Form, the matter was listed for directions, which were given by Morgan J on 17 February 2015. If required, Morgan J gave the Claimants permission, pursuant to section 20(2) of the Administration of Justice Act 1982, to extend time for issuing so as to validate the claim for rectification brought by the Claim Form. Given that probate had been granted on 19 June 2014, and the Claim Form had been issued on 16 September, it does not seem to me that permission was necessary; but, in any event, it has been given. Paragraph 2 of Morgan’s J order directed the Claimants expeditiously to take all reasonable steps, including advertisement, necessary to trace the statutory next of kin of Mrs Harte, and to file witness statements setting out those steps and their results. The cost of doing so was to be treated as a proper expense in the administration and borne by the estate.[4]Paragraph 4 of Morgan’s J order directed that notice should be given, pursuant to CPR 19.8A, of the claim to a number of named individuals and charities together with those persons established as Mrs Harte’s statutory next of kin. That notice has been given and no one has thought fit to file any acknowledgment of the service of the proceedings. Morgan J directed that a further directions hearing was to be listed after those steps had been taken. That further directions hearing took place before Norris J on 17 April 2015, when he listed the claim for trial and reserved the costs. It is that trial which is now before the court.[5]The difficulties that have arisen in the administration of Mrs Harte’s estate all relate to the terms of her last will which, as I have said, mirrored the terms of her husband’s will, executed on the same day. Clause 1 revoked all previous wills and testamentary dispositions. Clause 2 appointed Mr Harte to be Mrs Harte’s sole executor but, if he should pre-decease her, then (as I have mentioned) she appointed two of the partners in the firm of Charles Hoile Solicitors to be her executors and trustees. The will then provided as follows:
“3. I give all my personal property of whatsoever and wheresoever situated to my Trustees on the following trusts: 3.1 To pay my just debts, funeral and testamentary expenses. 3.2 For Patrick absolutely. 3.3 Provided that if Patrick should not survive me, then my Trustees shall hold my residuary estate as follows: 4.1 as to one tenth to Douglas Victor Harris” whose address is then given. “4.2 as to one part to Michael Harris” whose address is then given. “4.3 as to one part to Pamela Ellen How” whose address is then given. “4.4 as to one part to Sybil Maisie Wickens” 4.5. as to one part to Margaret Young and Paul Young” 7. whose address is then given. “4.6 as to one tenth to Newbury Hospital of Rookes Way, Thatcham Berkshire RG18 3AS 4.7 As to one tenth for Macmillan Cancer Fund” whose address and registered charity number are then given. “4.8 as to one tenth to Guide Dogs for the Blind” whose address and registered charity number are then given. “4.9 as to one tenth for Guide Dogs for the Deaf” whose address and registered charity number are then given. “4.10 as to one tenth for West Berkshire Ambulance Hospital.”
No address or registered charity number are given for the West Berkshire Ambulance Hospital. Clause 5 is a professional charging clause; and clause 6 expresses Mrs Harte’s desire to be buried at Shaw Cemetery.[6]Whilst there is tolerable clarity in the overall intention of the testatrix, as disclosed by her will, it is poorly drafted. The Claimants feel themselves unable to make any distribution without a court order approving the construction of the will proposed in this claim, or without rectifying it. The principal issues are:(1) whether one part of the residuary estate is equal to one tenth;(2) whether Newbury Hospital is a reference to the West Berkshire Community Hospital; and(3) whether West Berkshire Ambulance Hospital refers to the Thames Valley and Chiltern Air Ambulance Trust, which is a registered charity. As I have mentioned, notice has been given pursuant to CPR 19.8A to all potential beneficiaries under the will, including those who would take on intestacy. None have chosen to be joined to these proceedings. All of the named beneficiaries have indicated their agreement to the executors’ suggested interpretation of the will, but most of those who take under an intestacy expressed no opinion.[7]The evidence before the court comprises the following witness statements: First, the witness statement of Kathryn Tarry dated 10 December 2014. She was formerly a solicitor with Charles Hoile Solicitors and she is now a solicitor with the firm who act for the Claimants, Gardner Leader LLP of Newbury. She explains the difficulties that have been encountered in the administration of the estate because of the terms of the will. She also relates what steps have been taken to seek to obtain any further documents by way of clarification of the instructions for the making of both wills from Mr and Mrs Harte. There is a witness statement dated 12 December 2014 from Mr Patrick James Stewart. He is also a solicitor with Gardner Leader and he was formerly a solicitor with Charles Hoile. He is, of course, the first-named Claimant. It was he who took instructions for the making of the wills although, for reasons he relates in his witness statement, he does not consider that he was responsible for the actual drafting itself. Thirdly, there is a witness statement from Alexandra Scott-Malden, a solicitor, director and profit-sharing member of Charles Hoile Limited, dated 11 February 2015. She relates the steps that have been taken to obtain any further documents relating to the making of the last wills of Mr and Mrs Harte and any earlier wills. Finally, there are three witness statements from Mr David Michael Finnerty, a solicitor with Gardner Leader; these are dated 11 February, 14 April and 16 April 2015. He relates the steps that have been taken to alert the named beneficiaries to the difficulties that have been encountered in the administration of the estate and the interpretation of the will, and also the steps that have been taken to identify and notify the statutory next of kin of Mrs Harte of these proceedings.[8]Given that there are no defendants, no witnesses have been called to give live evidence to this court. The Claimants are represented by Miss Zoe Barton (of counsel), who has produced a helpful written skeleton argument dated 10 July 2015. As a result of my pre-reading, I have not found it necessary to call upon Miss Barton to any great extent. She has, however, produced the originals of the instructions, such as they are, that Mr and/or Mrs Harte gave in relation to their last wills, and also the note that Mr Stewart made at the time he received instructions for the taking of the wills. There is scant extrinsic evidence available to assist the court. There is one will file from which it would appear that the last wills of Mr and Mrs Harte resulted from amendments to earlier wills, but those earlier wills, or drafts of them, are not available. There are limited instructions from either Mr or Mrs Harte as to the changes they wished to make to their earlier wills. Neither the relevant fee earner, Mr Stewart, nor the one attesting witness who has been traced, are able to recall either Mr or Mrs Harte, or the making of their last wills.[9]After her death, Mrs Harte’s home was the subject of a house clearance and no papers of herself, or her husband, that may have included earlier wills remained. The executors suggest that the wills should be interpreted in the following way. First, that one part should be equated with one tenth of the estate. Secondly, the gift to Newbury Hospital should be treated as a gift to West Berkshire Community Hospital and paid over to the governing NHS Foundation Trust, which is the Royal Berkshire NHS Foundation Trust. Thirdly, that the gift to West Berkshire Ambulance Hospital should be paid over to the Thames Valley and Chiltern Air Ambulance Trust. Miss Barton has also drawn attention to the need to consider whether the residuary estate should be treated as comprising all of the late Mrs Harte’s personal and real property following payment of her debts, funeral, testamentary and administration expenses and inheritance tax. What is clear is that there is, in relation to the first of the identified gifts, a partial intestacy because the beneficiary identified in clause 4.1, Mr Douglas Victor Harris, pre-deceased Mrs Harte and there is no gift-over or accrual clause.[10]The court’s powers to interpret and rectify a will are set out in the Administration of Justice Act 1982. The general rules as to evidence governing the interpretation of wills are set out in section 21. That section applies to a will(a) insofar as any part of it is meaningless;(b) insofar as the language used in any part of it is ambiguous on the face of it; and(c) insofar as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances. By section 21(2), insofar as the section applies to a will, extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation. That provision was subject to consideration by the Supreme Court in the case of Marley v Rawlings [2014] UKSC 2, [2015] AC 129. The leading judgment (with which all the other members of the Supreme Court agreed) was given by the President, Lord Neuberger of Abbotsbury. Lord Hodge delivered a concurring judgment which solely addressed the position under Scots law. At paragraph 26 of his judgment, Lord Neuberger made it clear that, save where section 21(1) applied, a will was to be interpreted in the same way as any other document; but, in addition, in relation to a will, or a provision in a will, to which section 21(1) applied, it was possible to assist its interpretation by reference to evidence of the testator’s actual intention (for example, by reference to what he told the draftsman of the will, or another person, or by what was in any notes he made, or earlier drafts of the will which he may have approved or caused to be prepared). I am satisfied in the present case that section 21 is engaged and that I can have regard to the notes that were made by Mr Stewart and that were presented to him by Mr and/or Mrs Harte.[11]The rectification of wills is governed by section 20 of the Administration of Justice Act 1982. By sub-section (1), 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 should be rectified so as to carry out his intentions. Section 20 was the subject of the main focus of the Supreme Court’s decision in Marley v Rawlings. At paragraph 71, Lord Neuberger said that the best judicial summary of the effect of the cases so far decided on section 20 (1) (a) had been given by Blackburne J in the case of Bell v Georgiou [2002] WTLR 1105 at paragraph 8:
“The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intended to insert or omits something which he intended to insert … The remedy is only available if it can be established not only that the will failed to carry out the testator’s instructions but also what those instructions were.”
I emphasise that last sentence.[12]At paragraph 72, Lord Neuberger observed that if, as a result of a slip of the pen or mis-typing, a solicitor (or a clerk or, indeed, the testator himself) inserted the wrong word, figure or name into a clause of a will, and it was clear what word, figure or name the testator had intended, that would undoubtedly be a clerical error which could be rectified under section 20 (1) (a). At paragraph 75, Lord Neuberger accepted that the expression “clerical error” could have a narrow meaning, which would be limited to mistakes involved in copying or writing out a document and would not include a mistake of the type that had occurred in Marley v Rawlings. However, the expression was not said to be one with a precise or well-established, let alone a technical, meaning. The expression also could carry a wider meaning, namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, or organising the execution of a document (save possibly to the extent that the activity involved some special expertise). Those were activities which were properly to be described as “clerical”; and a mistake in connection with those activities, such as wrongly filing a document or putting the wrong document in an envelope, could properly be called a clerical error.[13]At paragraph 76, Lord Neuberger stated that, for present purposes, “clerical error” was an expression which had to be interpreted in its context, and, in particular, on the assumption that section 20 was intended to represent a rational and coherent basis for rectifying wills. Whilst he appreciated that there was an argument for saying that it did nothing to discourage carelessness, it seemed to Lord Neuberger that the expression “clerical error” in section 20 (1) (a) should be given a wide, rather than a narrow, meaning. Lord Neuberger proceeded to set out the reasons for taking that view. At paragraph 83, Lord Neuberger accepted that the error in the instant case was not within the narrower meaning of “clerical error” as was reflected by the approach to the expression summarised by Blackburne J in Bell’s case as representing the effect of the first instance authorities. But, for the reasons he had given, Lord Neuberger had concluded that the expression could, and, in the context of section 20 (1) (a), should, be given its wider meaning, which covered the mistake made in the Marley v Rawlings case. That mistake was, of course, the fact that each of the husband and wife had executed the mirror will intended for the other.[14]Against that legal background, I turn to consider Miss Barton’s submissions in the present case. The first relates to the meaning of the expression “residuary estate” in the context of clause 3.3 of the will, which provides that if Patrick should not survive Mrs Harte, then her trustees should hold her residuary estate in the manner then set out in the next following ten sub-clauses, numbered 4.1 through to 4.10. The will makes no express reference to real property, as opposed to personal; but Miss Barton submits, and I accept, that it is inherently unlikely that Mr and Mrs Harte, who had gone to the lengths of engaging a professional to whom they gave instructions to dispose of their assets, would deliberately and purposely omit dealing which what was probably their most valuable asset, which was the family home. I am entirely satisfied that, as Miss Barton submits, although “residuary estate” is not defined, it should be regarded as comprising the whole of the estate of the testatrix after payment of her just debts, funeral and testamentary expenses. Within the notion of testamentary expenses, I am also satisfied, as a matter of construction and interpretation of the will, that the testatrix intended to include any inheritance tax payable by reason of her death.[15]The next issue is the use by Mrs Harte of the expressions “one tenth” and “one part” in individual sub-clauses of clause 4. The residuary estate is given in tenths and in parts. Miss Barton acknowledges that one would ordinarily assume that the use of two different terms would indicate an intention that the meaning conveyed by them should differ. In this case, however, there is no indication as to what may have been intended by the term “part” if it is not to be a “tenth part”. Furthermore, there are a total of ten gifts of one part and of one tenth so that to interpret a “part” as meaning a “tenth part” will dispose of the entire residuary estate. In addition, there is the fact that each gift of either a tenth or a part is contained in a numbered sub-clause, running from 4.1 through to 4.10. Miss Barton invites the court to construe the gifts of “a part” as conveying the meaning of gifts of “one tenth part” of the estate. I accept that submission, and I construe the provisions of the will accordingly. By clause 4.1, one such tenth part was gifted to Mr Douglas Victor Harris. Sadly, he pre-deceased the testatrix and there is no alternative but to hold that his one tenth part devolves on a partial intestacy.[16]The next issue relates to the gift in clause 4.6 of the will as to one tenth for Newbury Hospital of Rookes Way Thatcham Berkshire RG18 3AS. The gift to Newbury Hospital is accompanied by an address. At that address, there is to be found the West Berkshire Community Hospital. The evidence discloses that the West Berkshire Community Hospital is colloquially known in the locality as Newbury Hospital. In the circumstances, Miss Barton submits, and I accept, that the court should treat the gift as being one for the benefit of the West Berkshire Community Hospital, which is operated by the Royal Berkshire NHS Foundation Trust, to whom it is intended that the gift should be paid. I so construe the will.[17]In clauses 4.7, 4.8 and 4.9, various charitable beneficiaries are included with accurate registered charity numbers. However, they are incorrectly named. I am satisfied that the gifts ought to be paid to the charities as identified by their registered charity numbers. In the case of clause 4.7, that means that the gift will be to Macmillan Cancer Support rather than Macmillan Cancer Fund. As for the gift in 4.8, the one tenth gift for Guide Dogs for the Blind will be construed as a gift for the Guide Dogs for the Blind Association; and as for the one tenth gift to Guide Dogs for the Deaf in clause 4.9, the gift will be construed as one for Hearing Dogs for Deaf People. I am satisfied these are clear cases of misnomer, which are capable of being identified correctly by reference to the registered charity numbers of the mis-named charities.[18]Finally, there is the gift in clause 4.10 as to one tenth for West Berkshire Ambulance Hospital. As I have mentioned, there is no address and no registered charity number. There is no West Berkshire Ambulance Hospital; and the language itself is a nonsense: The concept of an “ambulance hospital” would suggest a hospital for ambulances. Here, it seems to me that the case is not one of interpretation of the will under section 21 but of its rectification under section 20. For the purposes of rectification, the court must be satisfied as to the true intention of the late Mrs Harte. As Blackburne J emphasised in the passage cited by Lord Neuberger at paragraph 71 of Marley v Rawlings, the remedy of rectification is only available if it can be established not only that the will fails to carry out the testator’s instructions, but also what those instructions were. The evidence discloses that in the instructions for the will given by the testatrix or her husband, there was a heading “Charities” and then a roman five (v) and then the words “please add the Air Rescue” and then a word (or words) which is difficult to discern, and then the words “West Berks area.” Miss Barton has suggested that the illegible word (or words) may be “UK in” so that it all reads “please add the Air Rescue UK in West Berks area”. Mr Stewart’s manuscript notes appear to include a reference to “Air Rescue\Ambulance - West Berks”. I am satisfied that there is no other gift in the will to which these notes are likely to relate. I am satisfied that the testatrix intended to benefit an air rescue or air ambulance service operating in, and serving, the West Berks area. Because of the paucity of evidence as to how the error arose, it is not entirely clear whether, in including reference to the West Berkshire Ambulance Hospital, the draftsman of the will failed to understand the instructions being given to him by Mr and Mrs Harte, or was simply guilty of a clerical error in writing down the wrong description. Whichever is the case, however, I am satisfied that this is a case either of clerical error or of a failure on the part of the draftsman to understand the instructions being given to him by Mr and Mrs Harte, whose instructions were in identical terms. I am satisfied both that the will fails to carry out Mrs Harte’s instructions in relation to the gift to West Berkshire Ambulance Hospital and also what those instructions were. She clearly intended to benefit an air rescue or air ambulance service operating in, and serving, the West Berks area. It is clearly established on the evidence that the body that fills that description is the Thames Valley and Chiltern Air Ambulance Trust which, on the evidence, is the only air ambulance or air rescue entity operating in, and serving, the West Berkshire area. I am satisfied that the will should be rectified by substituting the reference in clause 4.10 to “West Berkshire Ambulance Hospital” as a reference to the “Thames Valley and Chiltern Air Ambulance Trust”.[19]For these reasons, therefore, I will declare as follows: First, that in her last will, the deceased’s residuary estate comprises all of her personal and real property following payment of her debts, funeral, testamentary and administration expenses and inheritance tax. Secondly, that the term “one part” in the various bequests of the residuary estate in clauses 4.2 to 4.5 of the will shall mean “one tenth part” of the residuary estate. Three, the bequest to Newbury Hospital shall be paid to Royal Berkshire NHS Foundation Trust. Four, the bequest to Macmillan Cancer Fund shall be paid to Macmillan Cancer Support. Five, the bequest to Guide Dogs for the Blind shall be paid to the Guide Dogs for the Blind Association. Six, that the bequest to Guide Dogs for the Deaf shall be paid to Hearing Dogs for Deaf People; and, seven, that the bequest to West Berkshire Ambulance Hospital shall be paid to the Thames Valley and Chiltern Air Ambulance Trust. I will direct that the residuary estate shall be distributed in ten equal shares(1) to those entitled under the rules of intestacy,(2) – (5) to those individuals, Michael Harris, Pamela Ellen How, Sybil Maisie Wickens and Margaret and Paul Young, who are identified in Clauses 4.2 to 4.5 of the will, (6) to Royal Berkshire NHS Foundation Trust, (7) to Macmillan Cancer Support, (8) to the Guide Dogs for the Blind Association, (9) to Hearing Dogs for Deaf People and, finally, (10) to Thames Valley and Chiltern Air Ambulance Trust. (1.00 pm)