A deceased prepared a Will via a firm of Will writers. There is a specific gift of ‘all my estate and interest if any in the freehold property being situate at … to my daughter’. The residue passes to the son.
The deceased did not own the freehold, but did own the leasehold. (The property was a retirement flat, so the deceased could never own the freehold.)
My thoughts are that the gift fails as the deceased did not own the freehold at the date of death. However, can the clause be construed so that the leasehold passes to daughter? This seems to have been the intention and had the word freehold not been included then this would have been the case.
Rules of construction and rectification come to mind, but those rules seem always to give you different results depending on who you are acting for!
In this respect, what are the chances that the court orders rectification of the Will to include the leasehold, assuming the fact that the deceased never held and could never have held the freehold – would that be sufficient i.e. is this sufficient evidence of a clerical error or failure to understand the testator’s instructions?
If the brother is unwilling to consider a variation, I suggest you ask for the will file and review the testator’s instructions. It may well be that the testator did not specify the nature of their interest and the will writer happened to use a clause specifying “freehold” and failed to recognise the significance of the wording. If that is he case, and the brother is reluctant to accept the position, perhaps a counsel’s opinion supporting the daughter’s entitlement might persuade the brother to agree. However, it would be for the daughter to obtain such an opinion, not the exector(s) or their advisers.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I’m going to go out on a limb here and say this is an issue which is resolved by construction. What does the person reading that clause, knowing what the testator had, think the testator meant by “my estate and interest if any in the freehold property being situate at [address of his flat]”? The only possible answer, it seems to me, is his flat. A recent-ish example is Guthrie v Morel [2015] EWHC 3172 (Ch). The testator’s will contained a specific devise of a property in Spain, “87 Loma del Rey”. The testator did not own No.87, but no.81. The court had no difficulty in interpreting that as a reference to the property he did own.
Indeed, it can be argued that the literal meaning of “an interest in a freehold property” could include a leasehold interest, ie the leasehold is carved out of the freehold.
If one had to resort to rectification, it sounds likely that this would fall within the classic definition of a clerical error - wording included in the will without the drafter applying their mind to it.
I am inclined to agree with Alexander’s view but of course as the son and daughter are the executors, the matter is likely to end up in the court unless there is a change of mind on the part of the son who in my opinion is being unreasonable. Of course that may be because the value of the property is far greater than the value of the residue of the estate. If that is the case then the two beneficiaries should try and reach a compromise as the cost of going to court could be expensive.