A headline in the Mail on 20th January 2023 is a classic example of not letting the facts get in the way of a good story:

“Mechanic, 66 fights for a share of his late stepfather’s £1m fortune claiming solicitor accidentally handed over £300,000 of his estate to charity”

You’d be forgiven for thinking that a solicitor absentmindedly put an extra nought on a cheque, or something similar. In fact, this is a rather interesting example of a Will where there seems to be legitimate room for doubt about who exactly the deceased intended to benefit from his estate.

From the news report it appears that James McKay in his will, left around £20,000 in ‘specific’ legacies to various charities. This means that fixed amounts were given.

The will then went on to dispose of the ‘residuary estate’ ie what was left over after payment of the legacies (and any debts eg the funeral bill). The residuary estate in this case, was left to ‘the beneficiaries’. The problem is that the residuary estate is substantial –  £495,000 and the word ‘beneficiaries’ technically includes the charities, as well as the deceased’s family.

Mr McKay’s stepson, Steven Pead, says that his stepfather had promised him around £500,000 while he was alive  – as opposed to the £280,000 he will receive under a strict interpretation of the will. He is adamant that his stepfather can’t possibly have intended that the charities should get not only their specific bequests, but also share £309,000 of the residue of the estate.

The crucial evidence is a file note of a meeting with the deceased which recorded that ‘people’ named in several clauses in the will should share the residue. Steven Pead’s barrister is arguing that ‘people’ is commonly taken to mean individuals – not an organisation like a charity. So, the argument is that the intention of the deceased cannot have been to benefit the charities in the way that the will provides.

Rectification is the legal claim here. It’s brought where there is a mistake in a will due to either a clerical error or to a failure to understand the testator’s instructions. An application can be made for rectification under s20 Administration of Justice Act 1982.

The court will consider the following three points, as set out in the case of Re Segelman [1996] Ch 171:

1. what the testator’s intentions were with regard to the dispositions in respect of which rectification is sought
2. whether the will, as drafted, fails to carry out those intentions
3. whether the will is expressed as it is due to either a clerical error or a failure on the part of the practitioner to understand those instructions

In this case, the stepson’s claim is opposed by the charities who argue that ‘people’ could easily include charities as well as individuals and that the solicitor who drafted the will was adamant that Mr McKay knew what he was doing. A decision is currently awaited from the High Court.

While it’s unlikely that this is an issue that will affect many, it’s important to be aware that mistakes can be made in wills –  and that the law may offer a remedy to put it right.

Get in touch with Sarah Young if you have any questions on our freephone 0800 8 60 62 65 or via our live chat facility on our website.

Sarah Young – Director