Bracey v Curley [2022] EWHC 359 (Ch)

A testator's will left his house Briardale to his wife for life, then to his son. She predeceased him, creating ambiguity about whether the son inherited. The court held the son took Briardale directly, with rectification available as an alternative.

Facts

The Testator, Alan George Bracey, died on 27 May 2018, leaving a Will dated 31 July 2015. He was survived by his son (the Claimant) and his daughter (the First Defendant). His wife, Irene Bracey, identified in the Will as ‘the Beneficiary’, had predeceased him in May 2016.

Clause 5 of the Will dealt with his principal residence, Briardale. Sub-clause (b) gave Briardale to the Trustees on trust for his wife if she survived him, with a life interest during the ‘Trust Period’ (defined in sub-clause (a)(iv) as the period between the Testator’s death and the death or earlier remarriage of the Beneficiary). Sub-clause (h) provided that ‘when the Trust Period ends’ the property would be held on trust for the Claimant.

Because Mrs Bracey predeceased the Testator, a dispute arose as to whether Briardale passed to the Claimant under Clause 5(h) or fell into residue (to be divided equally between the Claimant and First Defendant under the second numbered Clause 5).

The drafting solicitor, Angela Thomas, gave evidence that the Testator’s clear instruction was that Briardale should go to the Claimant in any event, subject only to a life interest in favour of his wife if she survived him. She had amended a standard precedent but acknowledged, after the dispute arose, that the words ‘IF the Beneficiary survives me’ should have been deleted from Clause 5(b) and the words ‘or if the Beneficiary fails to survive me’ inserted into Clause 5(h).

Issues

The court identified three issues:

• The proper construction of Clause 5 applying common law principles;
• Whether section 21 of the Administration of Justice Act 1982 applied so as to permit evidence of the Testator’s intentions; and
• Whether the Will should be rectified under section 20 of the 1982 Act.

Arguments

Claimant

Mr Ball submitted that the ‘Trust Period’ could exist without any trust being created, and could run backwards from the Testator’s death where the Beneficiary had already died. Alternatively, the period could have zero duration. Each sub-clause of Clause 5 stood independently, subject only to Clause 5(a). It would be capricious for the Claimant’s inheritance of Briardale to depend on the chance of which parent died first, particularly where both suffered serious illness. He relied on Marley v Rawlings, RSPCA v Sharp, Ricketts v Carpenter and Reading v Reading.

First Defendant

Mr Knight submitted that because Mrs Bracey did not survive the Testator, no Trust Period arose, and therefore there could be no point at which ‘the Trust Period ends’. A period must start with the Testator’s death and have positive length. He relied on Jump v Jones and Lucas v Eagle. On rectification, he submitted that this was a category 2 error under Wordingham v Royal Exchange Trust — a choice of wrong words involving special expertise — and thus not a ‘clerical error’ within section 20.

Judgment

Construction

The Deputy Judge held that the natural and ordinary meaning of ‘when the Trust Period ends’ in Clause 5(h) referred to the later of the Testator’s death and the death or earlier remarriage of his wife. There was nothing illogical in a period defined between two unknown dates, one being the Testator’s death, and such a period could run backwards or have zero duration. The sub-clauses of Clause 5 each stood independently, subject only to Clause 5(a).

This construction was reinforced by the overall purpose of the Will, other provisions, common sense, and relevant surrounding facts — particularly that the Testator had Lewy Body dementia and his wife was seriously ill with sleep apnoea, so there could be no clear expectation that either would survive the other. It would be almost capricious to make the Claimant’s inheritance dependent on which parent died first. The court drew an analogy with Reading v Reading.

Section 21 of the 1982 Act

If wrong on construction, the clause was at least ambiguous, permitting extrinsic evidence of intention under section 21. The Testator’s clearly established intention — that the Claimant should inherit Briardale in any event subject only to his wife’s life interest — would resolve the ambiguity to the same effect.

Rectification under section 20

If both construction and section 21 failed, rectification would be available. Applying Marley v Rawlings, the ground for rectification is to be given as wide a meaning as section 20(1) can properly allow. The omission of words such as ‘or if the Beneficiary fails to survive me’ in Clause 5(h) was a ‘silly mistake by the solicitor in the mechanics of faithfully carrying out his instructions’ — a clerical error within the wide meaning. To the extent Wordingham, Austin v Woodward and Lines v Porter were inconsistent with Marley, they were overruled. Reading v Reading was distinguishable as it involved a positive choice of a legal term of art, not an omission of conditional words.

Implications

The judgment confirms and applies the principles in Marley v Rawlings both to will construction and to rectification. In construing wills, courts will apply the natural and ordinary meaning of words within their documentary, factual and commercial context, drawing on overall purpose, other provisions, common sense and known facts, while disregarding subjective evidence of intention at the first stage.

The decision illustrates that defined terms such as ‘Trust Period’ need not depend on the creation of a trust and may be satisfied by reference to events regardless of sequence. It also reinforces a broad approach to ‘clerical error’ under section 20(1)(a): a solicitor’s omission of conditional wording, which fails to carry out a testator’s clear instructions, may be rectified even where the solicitor has actively drafted and amended clauses, provided the mistake lies in the mechanics of execution rather than in a misunderstanding of instructions or an error of legal expertise.

The case is of practical significance to private client practitioners drafting life interest trusts with remainder provisions, highlighting the risk that using a precedent geared to a surviving life tenant may fail where that life tenant predeceases the testator. It also demonstrates that the courts will adopt a purposive and pragmatic approach to avoid capricious outcomes where a testator’s intentions are clear.

Verdict: The court held that, on the true construction of Clause 5, the Second Defendant as executrix held Briardale on trust for the Claimant, and the property did not fall into residue. Alternatively, the same result would be reached under section 21 of the 1982 Act or, failing that, by rectification under section 20.

Source: Bracey v Curley [2022] EWHC 359 (Ch)