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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Slattery & Ors v Jagger & Ors [2015] EWHC 3976 (Ch) (10 November 2015) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2015/3976.html Cite as: [2015] EWHC 3976 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		10th November 2015

APPROVED JUDGMENT

HIS HONOUR JUDGE HODGE QC:

1. This case concerns the last will of the late Mr Albert Jagger who died on 27^th March 2014 at the age of 89. Prior to his death, he had made two wills which are relevant for present purposes. The first was executed on 5^th April 2007 and was made not long after the unfortunate deaths of two of Mr Jagger’'s three sons by his first marriage, Stephen and Ian. The second will which is relevant for present purposes, and which it is accepted is a valid will and had the effect of revoking the 2007, was dated 10^th June 2011. It was executed at a time when Mr Jagger was 86 years of age. The solicitors responsible for the drafting of both wills were a firm of solicitors with offices in Nelson and in Burnley in the County of Lancaster called Southerns.
2. Probate of the 2011 will was granted out of the Manchester District Probate Registry on 29^th April 2014 to the named executors, Mr Graham Slattery and Mrs Ruby Victoria Jagger. They are the claimants in this litigation. Mrs Jagger was the second wife of the late Albert Jagger. They had married in 1977 and therefore their marriage had lasted some 36 or 37 years until Mr Jagger’'s death in March 2014. Mrs Jagger had a son by her earlier marriage, Mr Graham Slattery, who is the first named claimant. They bring the present claim in their capacity as the executors of the estate of Mr Albert Jagger and also in their personal capacities. The defendants are, first, Mr Arthur Jagger, who is the only surviving son of Albert Jagger’'s first marriage, and David, Matthew, and Gareth Jagger, who are grandsons of Albert Jagger, having been the sons of the two of Mr Jagger’'s three sons, Stephen and Ian, who predeceased their father.
3. The 2011 will contained, in clause 3, a clause which reads as follows:

“"I GIVE DEVISE AND BEQUEATH my beneficial share (defined as ‘'my Share’') in (or in the future proceeds of sale of) any freehold or leasehold property (defined as ‘'the Dwelling’') which my Wife and I co-own as principal residence at my death and I DECLARE that this gift is to be free not only of any money charged or otherwise secured on my share but also of any money charged or otherwise secured on the dwelling itself (and that all such money should be paid free of tax out of my residuary estate I shelve [sic] the cost of discharging any security and any interest falling due before discharge) continuing for her own use and benefit absolutely.”"

4. The expression ‘'my Wife’' was a term defined in clause 2 of the will, which appointed Mrs Jagger (therein defined as ‘'my Wife’') and Mr Jagger’'s stepson, Mr Graham Slattery, as his executors and trustees. It will be immediately apparent that within the parenthesis of the declaration in clause 3 words have been included, namely, “"I shelve”", which are difficult to understand in that context. Clause 3 also omits to identify any object of the gift, devise and bequest of Mr Jagger’'s beneficial share in the dwelling which he and his wife co-owned as principal residence both at the date of the will and, in the event, as at the date of Mr Jagger’'s death.
5. It is the claimants’' case that by a clerical error, the words ‘'to my Wife’' were omitted from clause 3 of the will as executed by the testator and subsequently proved. It is said that the testator intended by clause 3 of his will to pass his share in the property at 39 Chichester Close, Burnley to Mrs Jagger absolutely and that clause 3 of the will should be construed to that effect. Alternatively, it is said that clause 3 of the will ought to be rectified so as to carry out the deceased’'s intentions by inserting the name of the beneficiary, namely his wife, that the testator intended to inherit his share of the property as identified in clause 3 of the will. The claim is for:

(1) A declaration that on the true construction of the will the testator’'s share in the property at 39 Chichester Close, Burnley, passes to Mrs Jagger; alternatively

(2) An order pursuant to section 20 of the Administration of Justice Act 1982 for the rectification of the will by the inclusion of the words ‘'to my wife Ruby Victoria Jagger’' at clause 3 of the will.

6. The claimants are represented by Mr Alexander Drapkin (of counsel) and the defendants are represented by Mr Paul Lakin (also of counsel). The trial commenced at about 10.30 yesterday morning, Monday 9^th November. There were three witnesses who gave evidence: Ms Anna Louise Nuttall, the draftsperson of the 2011 will; the second named claimant Mrs Jagger; and the first defendant, Mr Arthur Jagger. Before turning to the witness evidence, and in order to set the evidence of the witnesses in context, it is appropriate for me to refer to the documentary evidence as contained within Southerns’' will files relating to the making of both the 2007 and the 2011 wills.
7. To put the documentary evidence in context, it is important to bear in mind that Mr Jagger’'s two sons by his former marriage, Stephen and Ian, had died in July and October 2006 respectively. The loss of two sons so soon after each other must have been a terrible blow for Mr Jagger. The 2007 will file was opened on 17^th November 2006. The responsible fee earner was apparently Mr Andrew Buchanan, a partner in Southerns. On 20^th November 2006, he wrote to Mr Jagger referring to their meeting on 17^th November 2006. He recorded that in the course of that meeting, Mr Jagger had given Mr Buchanan instructions to prepare a new will for him which it was agreed would take the following form:

(1) He would appoint his wife and his stepson to be his executors;

(2) He would give to his wife all his personal belongings and his interest in the property at 39 Chichester Close, Burnley;

(3) He would then give the remainder of his property (basically his funds in the Halifax) upon trust to divide them into three shares, to pay one share to his wife, and to divide the other two shares equally between Mr Jagger’'s son Arthur, and his three grandsons Mathew, David, and Gareth. If Mr Jagger’'s wife pre-deceased him, then the gift to her of the house, personal belongings, and one third of the estate would fail and would simply be added to, and divided equally between, the son and the three grandsons.

8. Mr Buchanan noted that he had discussed with Mr Jagger whether he held Chichester Close as tenant in common or as joint tenant with his wife, and Mr Buchanan had explained the difference to him. Mr Jagger decided that he did not wish particularly to consider that matter in his will. Mr Buchanan recorded that he had made an appointment for Mr Jagger to come and see him on 24^th November 2006 at 10.00am to sign his will. However, he had subsequently received a telephone call that he was to take no further action on these matters until Mr Jagger contacted Mr Buchanan further and therefore he had “"held off from preparing a draft will”".
9. There matters appear to have rested until 6^th February 2007. There is, however, no documentary record of any attendance on that day. There is a time ledger card which records what would appear to have been (from the amount charged) a 24 minute attendance to file/client on 6^th February 2007. There is a journal entry on 7^th February 2007. There is then an attendance note dated 5^th March 2007 by Mr Buchanan on both Mr and Mrs Jagger. It records that Mr Buchanan had seen them that afternoon in relation to their wills. They discussed the possibility of the fact that the house was now a very valuable house proportionately and that the way they were leaving their estate was potentially very unfair to the family of whichever of them died first. Mr Buchanan explained the matter at length and they both agreed. After some discussion it was agreed that they should sever the joint tenancy in relation to the present property and then make wills which left the survivor the right to live in the half of the house which belonged to the first to die (with rights to substitute dwellings and a full life interest) and then leave the share of the first to die on the second death to the beneficiaries whom they would wish to see benefited from their own family. The remainder of the wills were to be as before. Mr Buchanan recorded that he said that he would send them drafts for consideration and see them as quickly as possible to get them signed off. That attendance appears to have lasted for some 36 minutes.
10. On 7^th March 2007 Mr Buchanan wrote to Mr and Mrs Jagger referring to the meeting on 5^th March and enclosing a draft will for each of them to look through. Basically, these were said to follow the terms of their existing wills save that now in clause 4 of Mr Jagger’'s will and clause 5 of Mrs Jagger’'s will they made provision for the half share which each owned in 39 Chichester Close (or other their dwelling) to be held on trust for the survivor of them and thereafter to pass to their family members. Mr Buchanan said that these wills reflected their lengthy discussions on 5^th March and that he would be grateful if Mr and Mrs Jagger could now make an appointment to see him and they would go through the wills. If all was in order, he would have them prepared immediately for their signature on the same day.
11. The will for Mr Jagger, which was eventually executed on 5^th April 2007, appointed Mrs Jagger and Mr Slattery to be his executors and trustees. There was a gift of the personal chattels free of tax to Mrs Jagger for her own use and benefit absolutely. Clause 4 was to take effect only if Mrs Jagger survived Mr Jagger for 28 days. In that event, Mr Jagger gave free of tax to his trustees his beneficial share in any freehold or leasehold property which he and his wife co-owned as their principal residence at his death. Clause 4(c) then declared that the gift was to be free:

“"...not only of any money charged or otherwise secured on my Share but also of any money charged or otherwise secured on the Dwelling itself (and that all such money shall be paid free of tax out of my residuary estate as shall the costs of discharging any security and any interest falling due before discharge).”"

12. By clause 4(d), that share was to be held by Mr Jagger’'s trustees on trust for sale and to pay the income from it or from the property currently representing it to his wife during the trust period. There was provision for the trustees not to take any steps to sell the dwelling or to disturb or restrict Mrs Jagger’'s occupation of it, but they were to join with her in selling it if she made a written request to that effect. There were then further administrative provisions relating to the trusts of that share; and clause 4(h) then provided that when the trust period expired (which was the period between Mr Jagger’'s death and the death of his wife), the trustees were to hold the property then the subject of clause 4 upon trust for such of Mr Jagger’'s son Arthur and his grandsons Gareth, Matthew, and David as should then be living and if more than one in equal shares for their own respective use and benefit absolutely.
13. By clause 5, the residue of Mr Jagger’'s real and personal estate was given to his trustees upon the usual trusts for sale and conversion upon trust to divide the same into two equal parts or shares and to stand possessed of them: (1) as to one of such two equal parts or shares upon trust for Mrs Jagger for her own use and benefit absolutely, and (2) as to the remaining one of such two equal parts or shares upon trust to divide the same between such of Mr Jagger’'s son Arthur and his grandsons Gareth, Matthew, and David as should survive him and if more than one in equal shares for their own respective use and benefit absolutely.
14. The will then contained in clause 6 a proviso that in the event of Mrs Jagger’'s death in Mr Jagger’'s lifetime, then her share of the residuary estate should accrue to and be divided between the residuary beneficiaries, namely Arthur, Gareth, Matthew, and David, and if more than one in equal shares, for their own respective use and benefit absolutely. There were then various administrative provisions with which it is unnecessary for me to deal.
15. That will was apparently executed on 5^th April 2007. Steps were then taken to sever the beneficial joint tenancy in 39 Chichester Close and to convert it into a tenancy in common. On 13^th April 2007, Mr Buchanan wrote to Mr and Mrs Jagger enclosing copies of the wills signed by them on 5^th April and confirming that the originals had been placed in Southerns’' strong room for safekeeping. The letter stated that the wills should be kept under review and, if circumstances changed, they could be altered at any time to meet those changed circumstances. The letter stated that earlier wills of 20^th August 2003 and 13^th September 2004 respectively had been destroyed. Mr Buchannan confirmed that the registration of the restriction at the Land Registry in relation to 39 Chichester Close had been completed and that they were now tenants in common of that property in equal shares which made the provisions that they had made in their wills in relation to their individual shares of that property workable.
16. The fee note that accompanied that letter dated 13^th April 2007 referred to four detailed meetings with Mr and Mrs Jagger to discuss the terms of their wills, and in particular the provision to make for their two families. By reference to the time ledger card, it would appear that those four meetings had been half an hour on 17^th November 2006, some 24 minutes on 6^th February 2007, 36 minutes on 5^th March 2007, and half an hour on 5^th April 2007 when the wills were executed.
17. The next event took place on 12^th May 2011. It is recorded in a file note of that date prepared by Laura Turner of Southerns. She records her attendance upon Mr and Mrs Jagger in relation to their wills and that nobody else was present during the appointment. I will read the remainder of the attendance note in full:

“"Mrs Jagger states that in fact the appointment is just in relation to updating her husband’'s will and not her own will. Both she and her husband have been married before and they have children from their previous marriages, and their wills were put in place to protect both sides of the family. However, Mr Jagger has made provision in respect of his share of the assets to go to his grandchildren and not to his son, and he would like to change his will so that his son actually inherits from his estate rather than his grandchildren.

I ask Mr Jagger if he would like Mrs Jagger to leave the room while we discuss his will or whether he is happy for her to remain in attendance. Mr Jagger states that he is happy for us to speak freely and openly in front of Mrs Jagger in relation to his will.

Mr Jagger asks if I can review the contents of his will as he has been unable to locate the copy of his will and he cannot recall exactly what is in the will. Mr and Mrs Jagger both provide me with their bus passes (with photographs) and debit cards to confirm their identity. Accordingly, I summarise the provisions in Mr Jagger’'s will.

In summary, the will provides that if Mr Jagger dies first, then his personal chattels will pass to his wife. His wife will be given a life interest to live in the property (the property is held as tenants in common). Once the life interest ends then Mr Jagger’'s share in the property will pass equally between his son and his three grandchildren. The rest of the estate is to be divided into two equal shares. One share will pass to Mrs Jagger and the remaining share is to be divided equally between client’'s son and his three grandchildren.

Mrs Jagger was clearly aggrieved by the provisions in the will. She states that Mr Jagger does not have contact with his grandchildren and she is surprised that he is leaving half of his residuary estate to them and not to her. She is under the impression that her will leaves her share of the house to her son but the rest of the estate to Mr Jagger. I ask Mrs Jagger if she would like me to review her will and she states that she would not like me to read it as she already has a copy and she is happy as to the contents. Mr Jagger states that he thought the appointment was for the two of them to review their wills but Mrs Jagger is adamant that it was simply for Mr Jagger to review his will and she does not want me to discuss her will.

Mr Jagger confirms to me that he is happy with the provisions of his will and he does not think that it requires any alteration. He thinks that it is fair the way it is drafted and he cannot think of anything that he would want to do differently.

Mrs Jagger asked if he fully understands the provisions of his will and Mr Jagger confirms that he does. Mrs Jagger states that the will is not in accordance with what they had discussed over the past few days and Mr Jagger replies that he has not discussed his will with her over the past few days, and having listened to the summary of the will, he is happy that it is straightforward and in accordance with his wishes. He does not want to make any changes at the present time.

I confirm that I will place the will back into storage and that if either Mr or Mrs Jagger would like to change their wills in the future, then they should simply make an appointment to see us.”"

18. At that stage, no new will file was opened. Such a file was not opened until 25^th May 2011. On that day there is a file note of an attendance by Anna Nuttall of Southerns’' Nelson office upon Mr Jagger. Ms Nuttall made notes in manuscript which are at page 164 of bundle 2 of the trial bundle, and there was then a typed attendance note prepared at pages 161 to 162. The manuscript attendance note gave Mr Albert Jagger’'s name, his address, and telephone number. His date of birth was given as 7^th October ’'24. The manuscript note then reads:

“"Changes in will. House own jointly. Your share in house on d. wife. Why to make sure wife has something valuable Taking your son out of the will. House to wife. Half money to son and grandchildren. One fifth each re £. Ring ALN when got it.”"

19. The typed attendance note reads:

“"ALN had spoken to LIT [that is to say Laura Turner] prior to the meeting who had some concerns following her last meeting with Mr and Mrs Jagger. Mr and Mrs Jagger had attended to see ALN but LIT advised ALN to see Mr Jagger on his own. This was because there was some conflict between them as to the contents of his will. They actually had mirror wills; however, Mrs Jagger seemed to think that everything had been left to her upon his death.

ALN therefore attended upon Mr Jagger, who is nearly 90 years old, on his own. He is partially sighted and compos mentis. However, he did struggle to grasp what he wanted to do. His wife had passed ALN a note prior to the meeting, a copy of which is on the file and it seemed to indicate that some money was being given in the sum of £1,000 each to each grandson and she was to receive the rest of the money.

ALN did not refer to this note and asked Mr Jagger what he would like to do. ALN explained the contents of his existing will on approximately four separate occasions.

At present, his half share in the house would be held on trust until such time as Mrs Jagger died. When she died, his half share would be split between his son and his three grandchildren. Anything else, including bank account funds, would be passed 50 percent to his wife and the remaining 50 percent divided equally between his son and his three grandchildren.

However, he said that he wanted to leave his share in the house to his wife. ALN advised him that that would mean that the share going to his son and his three grandchildren, i.e. 25 percent of the value of the property (approximately £25,000) would to [sic] be going to his son and grandson. Was that what he wanted? At first he was unsure.

The conversation continued whereby ALN demonstrated, using two pieces of paper, what was going to happen to the halves of the house. He understands that as it stood in his will now. However, if he changed his will, then that part of his estate would go to his wife.

The conversation continued whereupon it became apparent that Mr Jagger had a sole bank account in which there is approximately £100,000. The house itself is worth approximately £100,000. Therefore, we are talking about very similar figures in respect of the two sections of his estate.

We discussed various options and he settled upon: (a) his share of the house would pass automatically to Mrs Jagger; (b) the remainder of his estate will be divided five ways between his wife, his son, and his three grandsons.

ALN is to work on a draft and then forward it to him for him to contemplate. He will then telephone ALN.

Time taken in attendance - 42 minutes.”"

20. The note which Mrs Jagger had apparently passed to Ms Nuttall prior to the meeting is in manuscript and written in capital letters. It simply reads:

“"House Ruby. Money grandson. 3 £1,000 each. Arthur and wife rest of money Wen [sic] die.”"

21. On 26^th May, there is an email from Karen Iddon, who was a typist at Southerns, to Mary Simpson, who was Ms Nuttall’'s secretary, copied to Ms Nuttall, on the subject of “"typing for ALN”" and attaching the file note of the 25^th May meeting. The email reads:

“"Job gone back on system to fill in File Opening Form. Saved in ‘'ALN/Jagger Albert. Instructions: And if you would put that in a file and pass the papers back to me and I will draft the will; thank you. Cheers.”"

22. In evidence, Ms Nuttall explained that those were her instructions which had been typed up by Mrs Iddon and sent to Mrs Simpson. The reference to “"I will draft the will”" had been Ms Nuttall’'s instruction to Ms Simpson and reflected the fact that she (Ms Nuttall) was to draft the will.
23. That was duly done and on 2^nd June 2011 Ms Nuttall wrote to Mr Jagger. She thanked him for his instructions to act on his behalf in the matter of his new will. The letter was said to explain the basis upon which Ms Nuttall would carry out the work necessary in the matter. The letter was to be read in conjunction with the terms and conditions of business which were said to be enclosed in duplicate. Paragraph 1 is headed, “"Instructions Given:”"

“"We met on 25^th May 2011 and I had obtained a copy of your existing will from our Will Store.

I understand that you would now like to leave your share in the house that you own jointly with Mrs Jagger entirely to Mrs Jagger. Previously, your half share in the house would be held on trust until such time Mrs Jagger passed away. When she died your half share would be split between your son and your three grandchildren. Anything else including bank account funds would pass on a 50:50 basis to Mrs Jagger and your son and three grandchildren. I understand that you have approximately £100,000 in cash in your bank account. This account is in your sole name. Your house is worth approximately £100,000 and therefore your half share would be valued at present in the region of £50,000.

I enclose a draft will for you to have a look at. Please contact me when you have had the opportunity to consider it and confirm that you wish to proceed upon this basis.”"

24. The remainder of the letter dealt with the basis of Southerns’' retainer. Section 7 was headed, “"Conclusion”" and it reads:

“"Your continuing instructions will amount to your acceptance of these terms of business. Please sign and return one copy of the enclosed letter of Terms and Conditions of Business and return it to us immediately. I can then be confident that you understand the basis upon which I will act for you.

I hope that by sending this letter to you I have addressed your immediate queries about the day to day handling of your work and our terms of business. However, if you have any queries, please do not hesitate to contact the writer.

This letter with the enclosed Terms and Conditions of Business are important documents which I would urge you to keep in a safe place for future reference.”"

The letter threw upon Mr Jagger the onus of contacting Ms Nuttall when he had had an opportunity to consider it and he was then to confirm that he wished to proceed.

25. The draft will that accompanied the letter was in precisely the terms of the will that was eventually executed, save for the precise form of the attestation clause, which was later expanded to refer to the fact the will had been read to Mr Jagger prior to him executing it. Clause 3 was in precisely the terms of the finally executed will which I have already read. Clause 4 followed the form of the previous gift of residue in the 2007 will. Thus, it provided for it to be divided into two equal shares, one for Mrs Jagger for her own use and benefit absolutely, and, as to the remainder, for the son and the three grandchildren as should survive Mr Jagger, and if more than one in equal shares, for their own respective use and benefit absolutely. The residuary gift was contained in clause 4, which concluded with sub clause 4(iii). That read:

“"PROVIDED ALWAYS in the event of the death in my lifetime of my Wife and [sic] such case her share of my residuary estate TOGETHER WITH my Share of the Dwelling shall accrue to and be divided between the beneficiaries mentioned in clause 4(ii) hereof and if more than one in equal shares for their own respective use and benefit absolutely.”"

There was then in clause 5 a cross-accruer clause.

26. On 8^th June 2011 Mary Simpson sent an email to Anna Nuttall. She recorded that she had just spoken to Mr Jagger:

“"his wife has not read the will to him (he is partially sighted) and he can’'t confirm if it is okay or not. He says he will be able to answer that this afternoon when he comes to see you [Ms Nuttall].”"

Ms Simpson asked if Ms Nuttall wanted her to print it off just in case.

27. Ms Nuttall responded by email a minute later saying:

“"No, it’'s OK thank you. I can get it printed over there if needs be. Thanks and please let me have the file back. Please also let me have any letters to go out today by half past eleven.”"

28. There is then a file note dated 8^th June 2011 (which was a Wednesday). The time in attendance was two units, which was roughly twelve minutes. In evidence, Ms Nuttall estimated the length of the attendance at about a quarter of an hour. The file note reads as follows:

“"Mary had telephoned Mr Jagger that morning to ask whether or not he was happy with the terms of the will and he advised that his wife had not read it over to him.

When Mr and Mrs Jagger attended at the office, Mr Jagger insisted that Mrs Jagger attended with him in the meeting. He advised that he had not read through the client care letter, terms of business, nor the draft will. When he tried to answer to say that he was happy with the contents of it, Mrs Jagger tended to answer for him.

He is actually more partially sighted than ALN originally understood. He said that his wife has to read everything over to him and he has a special machine to read things to him. He had not used the machine to read through the paperwork that ALN had sent to him. ALN had not prepared a final draft of the will as he had not confirmed that he was happy with the contents of it (following his telephone conversation with Mary that morning). Mrs Jagger did not know that Mary had telephoned to speak to Mr Jagger that morning.

In the circumstances, ALN will have to amend the will to reflect the fact that he is a partially sighted testator and ALN will have to read the will over to him and make sure that the execution is done properly.

He understood this. Tonight he will go home and read all the paperwork on his special machine. ALN rearranged for them to attend on Friday at 1.00pm (particularly in view of Mr Jagger’'s advancing years and the fact that we need to get this sorted as soon as possible).

Mrs Jagger coincidentally made an appointment for the following Wednesday to alter her will.”"

29. On the following day, at 9.44am, Ms Nuttall sent an email to Mary Simpson (her secretary):

“"I am leaving at twelve today and going to BP [which I understand to be the Bank Parade, Burnley office of Southerns] tomorrow for 1.00pm and not returning to Nelson.

Jagger Will

Mr Jagger is due to attend at BP tomorrow pm to execute his will. He is supposed to have read through the one I have drafted and the letter (last night) and I would like you to ring him this afternoon to check that he has. Once he has confirmed he is happy with it, please ask to speak to Mrs Jagger about her appointment next week and check that Mr Jagger has read the will and is happy with it. I am concerned about his level of comprehension.

If you would drop me an email on [my Sky email account] and let me know how you got on, I can prepare for tomorrow.

Thank you.”"

Mary Simpson responded at 9.45: “"Ok. Will come down by 11.30 with all your post.”" At 9.46 Anna Nuttall responded: “"Great, thank you.”"

30. There are then manuscript notes recording that Mrs Simpson telephoned at 2.22pm and there was no answer. She telephoned again at 2.54pm and left a message. There is then a manuscript note (at divider 46, page 174) which in fact continues at divider 60, page 200. I will read the manuscript attendance:

“"Not sticking. He thinks he has idea. Yes happy not a great deal, the wording of it is fine. Will read it again- will remember parts of it not all. Mrs Jagger confirmed that he is happy has a few problems lately just tired, but he is of sound mind. Does understand it correctly. Read it through the machine so its bigger.”"

31. That manuscript note was then incorporated into a typed file note by Mary Simpson (whose initials appear to have been MLM for internal purposes, as Ms Nuttall confirmed during the course of her evidence). The file note reads:

“"Telephone call to 431099 - left message for Mr and Mrs Jagger to ring Mary on 603663.

Telephone call made to 431099 - 4.15pm. MLM spoke to Mr Jagger. She asked him if he had read the draft paperwork that ALN had given him the previous evening. He said it’'s not sticking, he thinks he has the idea of it. Yes happy with the wording. He will read it again but won’'t remember it all just parts of it. He said he is seeing that nice lady tomorrow.

MLM then asked to speak to Mrs Jagger to confirm her appointment next week. MLM asked Mrs Jagger if Mr Jagger had read the paperwork and was happy with it. Mrs Jagger confirmed that Mr Jagger was happy with it, its just he has had a few problems lately and tired, but he is of sound mind. She said that Mr Jagger does understand it as he has read it twice through his machine which makes the print bigger.

MLM thanked her for her time and Mrs Jagger confirmed that she will bring Mr Jagger to his appointment tomorrow.”"

32. There is then a typed file note of 10^th June 2011. The time in attendance is said to be 18 minutes. The file note reads as follows:

“"ALN and Sue Lane from the Burnley office attended upon Mr Jagger.

He confirmed that he had read through his will on his special machine the evening before and the letter confirming his instructions and the Terms and Conditions of Business.

He confirmed that he is happy with the contents of his will.

Due to the fact that Mr Jagger is partially sighted, ALN read the entirety of his will to him, breaking off after each paragraph to explain the contents of the paragraph read.

At the end of this, Mr Jagger confirmed he felt that the will was straightforward and that he was happy to execute it.

ALN will send a photocopy of the executed will to him together with an invoice.”"

33. The will was duly executed on that occasion on 10^th June 2011. On 14^th June 2011 Ms Nuttall wrote to Mr Jagger on the subject of his will. The letter reads:

“"Further to our meeting on 10^th June 2011 with my colleague Sue Lane, I read over to you the enclosed copy will and you confirmed to us that you were satisfied with the contents of it, and that it reflected your wishes.

In the circumstances, you executed your will in our presence and I enclose a photocopy of the duly executed will herewith. Please keep this with your important papers.

I enclose herewith my invoice for your attention and I look forward to receiving your remittance in due course.”"

The fee note was in the sum of £95.00 plus VAT, making a total amount payable of £114.00. Payment was apparently received on 16^th June 2011. That concludes the will file.

34. Mr Albert Jagger died on 27^th March 2014. On 9^th April 2014, Kirsten Bradley, a solicitor at Southerns, wrote a letter to each of the four defendants in their capacity as residuary beneficiaries of the will. The letter advised them that Southerns had been instructed by the executors of Mr Jagger’'s will and enclosed a copy of the will for their reference. The letter continued:

“"You will note that at clause 3 of the will, your grandfather refers to his share in the property at 39 Chichester Close. The property has been valued at approximately £75,000 which would make your grandfather’'s share of the property £37,500.

Clause 3 of the will has been drafted so that the beneficiary of the gift is not specifically named. This is an error on the part of the solicitor drafting the will. We have obtained our Will file from storage when the instructions were taken from your late grandfather which clearly indicate that your grandfather intended to gift the half share of the property to his wife. Also, it is obvious from the way the Will is drafted that the property was intended to be gifted differently to the residual beneficiaries of the Will of which you are one.

It had originally been our intention to apply for rectification of the Will which would mean that an application is made to Court to correct this drafting error.

However, if all beneficiaries are in agreement, a quicker way to deal with matters would be for all beneficiaries to sign a Deed of Variation which would include a clear gift of the property to your late grandfather’'s wife.

I would be obliged if you would confirm whether or not you would be agreeable to vary the contents of your late grandfather’'s Will to include the gift of the half share of the property to his wife and with the remainder to be as stated in the existing Will, half his wife Ruby and half shared between [the four named beneficiaries].

If you are in agreement, please sign the duplicate copy of this letter and return the same to me. If you have any concerns, then I would recommend that you seek independent legal advice on this matter. If you do wish to seek independent advice then please contact me prior to doing so so that I can ensure that you do not have to bear the costs of obtaining this advice.

I look forward to hearing from you further.”"

The defendants subsequently instructed a firm of solicitors, Farnworth Rose, and the ensuing correspondence eventually led to the present litigation.

35. I turn now from the documentary evidence to the witness evidence. As I have mentioned, there were two witnesses for the claimants and one for the defendants. Ms Anna Nuttall made an affidavit in support of the rectification claim on 21^st January 2015, at about the time the claim form was issued. She made a later witness statement setting out her recollection in more detail on 14^th September 2015. In her affidavit, at paragraphs 7 to 9, Ms Nuttall deposed that it was her usual practice carefully to check the typing of all important documents but unfortunately on this occasion she failed to notice that clause 3 of the will prepared by her did not name any beneficiary at all in relation to Mr Jagger’'s share of his property. She said that her attention had been drawn to clause 3 of the will in which she could see that no beneficiary was, in fact, named. She said that she was wholly satisfied that the name of the beneficiary had been left out as a clerical error and that Mr Jagger had intended for his share of the property described within that clause to pass to his wife. Mr Jagger had also failed to notice the omission of his wife’'s name in clause 3, but his intentions were said to be clearly recorded in Ms Nuttall’'s file note of attendance upon him and in her subsequent letter to him of 2^nd June 2011. Ms Nuttall said that when she met with him on 10^th June 2011, Mr Jagger had confirmed that he was happy to proceed on the basis of his previous instructions, which included the provision that his house or share of any property at the time of his death would pass to his wife, Ruby Victoria Jagger.
36. In her witness statement, at paragraphs 6 and following, Ms Nuttall said this: That prior to her meeting with Mr Jagger on 25^th May 2011 she had been handed a note by Mrs Jagger. She did not make reference to that note during her meeting with Mr Jagger because she had wanted to ensure that she received his direct instructions as to the changes to his previous will which he required. Having had her meeting solely with Mr Jagger, Mr Nuttall said she was satisfied that the will instructions were his intentions, that he was not being influenced by anyone else, and that he understood the instructions which he was giving and their effect.
37. Having re-read paragraph 5 of her typed-up file note, Ms Nuttall notes that this is somewhat confusing. It appears from her note that she explained that if Mr Jagger wanted to leave his share in the property to his wife, then that would mean that 25 percent of the property would go to his son and grandson. That is said clearly to make no sense and so Ms Nuttall cannot explain what this was meant to mean or how or why this was included in the file note. Regardless of this, she says that it is evident from the rest of the note and from her handwritten note that Mr Jagger’'s instructions were for his half share in the property to be left to his wife.
38. Ms Nuttall later prepared the draft will as agreed. She cannot be certain of the procedure she used in order to prepare the will. However, her normal practice was to get a precedent will from her binder of will precedents and either dictate the content of the will to her secretary, Mary Simpson, or to handwrite amendments on to the precedent will for typing-up. As there was no precedent will containing handwritten notes on the will file, Ms Nuttall considers it most likely that she dictated the content of the will to her secretary. She would then have typed-up the draft, which Ms Nuttall then sent to Mr Jagger under cover of her letter of 2^nd June 2011.
39. Although Ms Nuttall now realises that clause 3 failed to include the name of Mrs Jagger as the intended beneficiary of Mr Jagger’'s half share in the property, Ms Nuttall failed to notice that both when checking the draft will and upon execution of the will on 10^th June 2011. Ms Nuttall says that it is usual practice for her to carefully check the typing of all documents so she cannot be certain how the error arose on that occasion. It might be that her secretary struggled with Ms Nuttall’'s dictation in the matter, which resulted in the failure to include the words ‘'to my Wife’' after, “"I give, devise, and bequeath”" in clause 3 of the will. Alternatively, Ms Nuttall may have missed these words out when dictating at speed, resulting in the failure to include Mrs Jagger’'s name in clause 3 of the will. Unfortunately, on this occasion when checking the will, Ms Nuttall failed to notice that this was the case. She fully accepts that that was an error on her part. She should have checked the will more thoroughly. Had she done so, Ms Nuttall is confident that she would have noticed the error.
40. Ms Nuttall records that Mr Jagger attended the Burnley office on 10^th June to sign the will. The file note confirms that Mr Jagger was happy with its contents. It also notes that Ms Nuttall explained the contents of each paragraph of the will following reading each clause. Although Ms Nuttall failed to notice that clause 3 did not expressly specify Mrs Jagger as the intended beneficiary, she believes that when she explained the effect of a clause to Mr Jagger, she would have explained that his half share in the property would be left to Mrs Jagger as he had so instructed. Mr Jagger subsequently executed the will on that basis. Ms Nuttall says that she is wholly satisfied that the failure to include the second claimant’'s name in clause 3 of the will was the result of a clerical error. She also has no doubt that Mr Jagger intended for his share of the property to pass to Mrs Jagger. That is said to be confirmed by the documents to which she makes reference, and the fact that Mr Jagger signed the will after Ms Nuttall’'s explanation of its effect, as recorded in her witness statement.
41. Ms Nuttall gave evidence before me for a total of about an hour and three quarters on the morning of Monday 9^th November. She explained that the first time she had met Mr Jagger was on 25^th May. Her recollection was not now very clear. Her practice covered the drafting of wills, but not probate, and also it covered conveyancing. The only thing out of the ordinary about the drafting of Mr Jagger’'s will was its execution. She explained that her evidence was based upon her notes at the time. She had not been asked to recall events until she came to make her affidavit at the beginning of this year. She could remember just speaking to Laura Turner before seeing Mr and Mrs Jagger, but she did not remember the circumstances. She could only imagine that she had not seen the earlier file note of the meeting on 12^th May 2011. Ms Nuttall said that the important thing on 25^th May had been to see Mr Jagger on his own. She would have gone to see Mr and Mrs Jagger in reception and would have said that she needed to see Mr Jagger on his own.
42. Ms Nuttall could not remember when Mrs Jagger had passed the manuscript note to her. Ms Nuttall said that her instinct would have been not to pay too much attention to that note because the most important thing was to speak to Mr Jagger. She honestly did not recall reading the note before her meeting with Mr Jagger. Her main priority had been to speak to the client. If she had been passed a note by a non-client, she would not have paid much attention to it. The only document she believed that she had had at the time of the 25^th May meeting was the earlier will which would have been retrieved from storage. She would not have had the old will file and would not have seen any other documents, so she would not have known what time and effort had gone into the drafting of the earlier 2007 will.
43. Mr Jagger’'s instructions on 25^th May had been that his share in the house should go to his wife. She says that the meaning of paragraph (b) on the second page of her file note of 25^th May – that the remainder of the estate would be divided five ways between Mr Jagger’'s wife, his son, and his three grandsons – could have been clearer. She had assessed Mr Jagger’'s mental capacity by having had a general chat with him at the beginning of the meeting. If she had had any real concerns about his capacity, she would have made further enquires about it. She thought that he was mainly concerned about the house. She could not really recall whether he had discussed his son. She would have dictated her file note soon after the time of her conversation with Mr Jagger. She had no specific recollection of how the will had been created although it was she who had drafted the will. She was asked whether she would have had the 2007 will to hand when she drafted the 2011 will and Ms Nuttall said that she strongly suspected that she would since she had had it to hand during the course of her meeting with Mr Jagger on 25^th May. She had a number of will precedents which were contained in a binder. She could have used either the 2007 will or one of those will precedents as the basis for the 2011 will.
44. It was specifically put to Ms Nuttall whether it had been possible for her to have left a name missing from clause 3 because she was unsure about Mr Jagger’'s instructions. Ms Nuttall was clear that that was not the case and that what she had done was simply to have missed the name out of clause 3. Ms Nuttall was later asked about the file note of 8^th June meeting with Mr and Mrs Jagger. She said that the will had already been drafted on the basis of instructions that Mr Jagger had given her. They had been expecting a phone call from him to tell Southerns that he was ready for the will to be executed.
45. When asked about the reference in the 8^th June file note to Mrs Jagger tending to answer for her husband, Ms Nuttall said that she thought that Mrs Jagger had just tended to answer for her husband in the way that some couples do. They knew that he had read the will himself by 10^th June and also that, by that date, he was happy with the terms of the will as drafted when he had come back to execute it. He told Ms Nuttall that he had read it properly on his special machine. There had been nothing to suggest to Ms Nuttall, either on 8^th June or on 10^th June, that Mr Jagger was incapable of understanding the draft will that had been sent to him. There was nothing to indicate to her that he was unable to give instructions.
46. Turning to 10^th June, Ms Nuttall thought that Mrs Jagger had waited in reception for her husband whilst he attended upon Ms Nuttall and upon Sue Lane for Mr Jagger to execute the will. Ms Nuttall was asked about the statement in her file note of 10^th June that she had read the entirety of Mr Jagger’'s will to him, breaking off after each paragraph to explain the contents of the paragraph read. Ms Nuttall accepted that she must have read clause 3 as it appeared in the executed will. She accepted that everyone must have accepted that that was fine. She said that she would have explained that clause 3 of the will meant that Mrs Jagger would have Mr Jagger’'s share of the house on his death. She said that she could not explain why she had made the mistake that she had. She acknowledged that it was her mistake. She said that she looked at clause 3 and she cannot quite believe that she did not put a name in it, but the fact was that she had not. She said that it was a human error. She thought that they had probably missed it because they were referring in clause 3 to the house and clause 3 referred to her, which was exactly what was intended. She said that Mr Jagger had understood that his wife was the beneficiary. He had expected it to be the case and Ms Nuttall had expected it to be the case also.
47. It was put to Ms Nuttall that Mr Jagger had read clause 3 at least three times and Ms Nuttall responded that he had expected his wife’'s name to be there. She was asked if it was possible that Mr Jagger had been content to execute his will with no name in clause 3. Ms Nuttall said that she would have been surprised by that. She accepted that Mr Jagger had confirmed that he had been happy with the will even before Ms Nuttall’'s explanation of it.
48. Ms Nuttall was asked about the expression “"I shelve”" in relation to the cost of discharging any security and any interest falling due before discharge in the parenthesis to the declaration in clause 3. She said that that was not the intended meaning of that clause.
49. In answer to questions from the Bench at the end of her evidence, Ms Nuttall said that she should have spotted that something was wrong with the use of the word “"shelve”" but obviously she had not. She was then asked about the use of the word “"continuing”" at the end of clause 3, “"...continuing for her own use and benefit absolutely.”" She said that she was sorry, but she was not sure what had been meant by the word “"continuing.”" There had been an obvious error in dictation which might have been due to mishearing what Ms Nuttall had been saying. I then asked whether the word “"continuing”" might have been a mistake for the phrase ‘'to my wife’'. Ms Nuttall said that that was possible and that that would have been the ideal spot to have inserted a name in clause 3 before the phrase, “"...for her own use and benefit absolutely.”" That was the extent of Ms Nuttall’'s evidence.
50. I then heard in the afternoon for about an hour and ten minutes from Mrs Jagger. She had made a witness statement dated 18^th September 2015. In the course of his closing, Mr Lakin for the defendants submitted that Mrs Jagger’'s evidence was incapable of assisting the court. He pointed to the fact that she was 86 years of age and repeatedly indicated that she could not remember things. Mr Lakin submitted that the court could not be assisted by any of her evidence. I accept that submission. I have no doubt that Mrs Jagger was honestly doing her best to assist the court and in that she was inhibited by the fact that due to a head cold, she found it hard to hear all that was being put to her. However, it was a constant refrain of her evidence that she could not remember and that there had been “"a lot going on”".
51. In relation to the handwritten note that Ms Nuttall said had been given to her by Mrs Jagger, Mrs Jagger herself said that she had not a clue what that document was. She said that it was not her handwriting. She did not remember seeing the document to be honest; it was not her husband’'s handwriting either.
52. In relation to her visits to the solicitors in Burnley, Mrs Jagger said that she had taken Mr Jagger on 8^th June because he could not drive and she had a car, but she could not remember a meeting. In relation to Mr Jagger’'s attendance to execute the will, she said that she probably had taken her husband because he could not travel on his own and there was no one else to take him, but she could not recall. She could remember going to the solicitors but she did not know what for. She said that sometimes Mr Jagger had had to go into a separate room and she would just sit outside and wait for him. She also referred to going to the solicitors in connection with a power of attorney.
53. Whilst I am satisfied that Mrs Jagger was seeking to do her best to assist the court, I am also satisfied that she has no present recollection of relevant events. But she was adamant that Mr Jagger had wanted to make the will and he had said that she should have the house because she had lived there all the time she had. I do accept that it was her understanding that Mr Jagger wanted her to have the house after his death; but beyond that, I can place no great weight upon, and can derive no real assistance from, her evidence.
54. The third and final witness, this time of the defendants, was Mr Arthur Jagger, the first defendant. He gave evidence for about 25 minutes. He was entirely honest that he knew nothing about the making of the 2011 will. He could not understand how Mr and Mrs Jagger had come to go back to the solicitors in 2011 when they had already made wills four years earlier, shortly after the death of the Mr Jagger’'s two sons. He said that his father had been deeply hurt by what had happened in 2006 and he had never said anything about changing his will. He took the view that what Mr and Mrs Jagger had achieved in 2006 was to reserve the legacy of the loss of two sons for all eternity. He said that by 2011, his father’'s health and eyesight had seriously diminished and that the pain would have been very difficult for him. He was at a loss to understand how and why the making of the 2011 will had come about.
55. In closing, Mr Lakin submitted that Mr Arthur Jagger had been exceedingly candid. He had the knowledge that the contents of the 2011 will had never been discussed with him and that he had had no direct knowledge of events which had taken place at the solicitors giving rise to the existence of the 2011 will. I accept those submissions. I have no doubt that Mr Arthur Jagger was doing the best he could to assist the court, but the fact is that he had no relevant evidence to give. Such evidence as he did give does not assist me in resolving the issues I have to determine.
56. I turn then to the closing submissions. Mr Lakin addressed me first this morning for about an hour and a quarter. He had previously prepared a written skeleton argument. Both counsel accepted that I had first to determine the meaning of the will on its true construction and only then should I go on to consider, if necessary, the claim for rectification of the will.
57. Mr Lakin submitted that the deceased’'s stated intention as at 12^th May 2011 was that he was content with the 2007 will. He said that it was also clear that Mrs Jagger herself was not happy with what that will provided. Mr Lakin submitted that the following points emerged from the file note of the meeting on 25^th May. First, Ms Nuttall had concerns before the meeting about seeing Mr Jagger and his wife together due to a potential conflict that had clearly arisen on the occasion of the previous meeting of 12^th May. Secondly, before the meeting, Mrs Jagger had passed a note to Ms Nuttall that suggested that £1,000 was to be given to each of the grandchildren with the rest to be left to her. Ms Nuttall had not raised the contents of that note with Mr Jagger and had not checked with him that he was making the alterations to his will of his own free will and that he was not being pressured or coerced into making the changes. Thirdly, Ms Nuttall noted that Mr Jagger had struggled to grasp what he wanted to do and that Ms Nuttall had had to explain the contents of his existing will to Mr Jagger on approximately four separate occasions. Fourthly, the file note purports to record that Mr Jagger gave instructions that he wanted to leave his share in the house to Mrs Jagger and Ms Nuttall advised that that would mean that the share going to his son and his three grandchildren was 25 percent of the share of the property.
58. That advice as recorded is inconsistent with what is recorded as Mr Jagger’'s own instructions and appears to suggest that Mr Jagger’'s intentions were premised on erroneous advice so that he was under the misapprehension that even after the changes had been made, the defendants would still be entitled to a 25 percent share of the property. In any event, the file note records that, at first, Mr Jagger was unsure. If later he agreed, his instructions as recorded in the file note were still that the defendant should receive a 25 percent share of the property.
59. In those circumstances, Mr Lakin says that the claimants cannot prove to the requisite standard what the deceased’'s intentions actually were in relation to the will. Moreover, Mr Lakin makes the point that all the parties are supposed to have read through the will on several occasions and yet no one noticed that clause 3 failed to set out to whom the property was to be left. He submits that this demonstrates that Mr Jagger was unsure of his instructions. It is quite possible that Mr Jagger had read the will and had noticed the wording of clause 3 but was content to sign it on those terms as that gave effect to his intention and that he thought that the property would then fall into residue.
60. Mr Lakin also makes the point that Mr Jagger never signed and returned a copy of the letter of 2^nd June confirming his instructions to the solicitors so that Ms Nuttall could never have been confident that he did understand either the instructions that he had given or Southerns’' terms of business. Because of the uncertainty as to what Mr Jagger’'s intentions were, the court cannot be satisfied that the will as drafted does not accord with those intentions. The effect of clause 3 is that Mr Jagger’'s share of the property falls into residue and so it will be divided in accordance with the advice that had been given in the file note of 25^th June in relation to a quarter of the property going to Mr Jagger’'s son and grandsons.
61. Mr Lakin submits that it is likely, having read the will on a number of occasions, that Mr Jagger understood the will as it was drafted and was content for there to be no named person in clause 3 so that the whole of his estate, including his share in the matrimonial home, fell into residue so as to be dealt with in accordance with the residuary gift in clause 4 of the will. That outcome is said to be more in line with what the 2007 will provided and accords with the firm view the deceased had expressed only a matter of days earlier that the 2007 will had been in accordance with his intentions. It is therefore submitted that the court is unable to find as a fact, to the requisite standard, that the will as expressed does not accord with Mr Jagger’'s true intentions.
62. Mr Lakin also submits that if there was an error in the will, it was not a “"clerical error”" within the meaning and purview of section 20(1)(a) of the Administration of Justice Act 1982. The terms of clause 3 of the will were expressed in language to which the draftsperson had applied her mind with a proper understanding of her instructions. The fact that clause 3 does not achieve the objective which she and the testator intended does not mean that there has been a clerical error. He submits that rectification is not available if the draftsperson of the will understands the testator’'s instructions and deliberately chooses phraseology or language which he or she mistakenly believes gives effect to those instructions.
63. He also submits that Ms Nuttall is to be taken to have applied her mind to the choice of words that would give effect to Mr Jagger’'s instructions to her as she understood them to be. She must have applied her mind to the language of clause 3 when she dictated or drafted the will, when she came to review the draft before sending it to Mr Jagger, and then when reviewing the will with Mr Jagger, and advising him as to the effect of the terms of the will on the occasion when he came to execute the will. On each of those three separate occasions, Ms Nuttall would have had to have had to apply her mind to the meaning and effect of clause 3 of the will. He submits that in those circumstances, any error could not be a “"clerical error”" within the meaning of section 20 of the 1982 Act.
64. Mr Lakin expanded upon those submissions orally. He first addressed the issue of construction of the will. He accepted that the construction of a will is no different from the construction of any other legal document. In that connection, he took me to the Supreme Court’'s recent decision in the case of Marley v Rawlings & Anor [2014] UKSC 2, [2015] AC 129, in particular at paragraphs 20, 24, and 26. He accepted that clause 3 of the will as it stands is either meaningless or ambiguous and therefore section 21 of the Administration of Justice Act 1982 (relating to the admissibility of extrinsic evidence) is engaged. On the issue of interpretation, Mr Lakin took me to paragraphs 37 and 41 of Lord Neuberger’'s judgment in Marley v Rawlings. He relied in particular upon paragraph 42 where the Supreme Court, having decided it was unnecessary to decide the point on the true construction of the will, referred to Mr Justice Nicholls’'s judgment in the earlier case of In re Williams decd [1985] 1 WLR 905 where Mr Justice Nicholls was recorded to have taken an orthodox view of interpretation. Mr Lakin referred me to Lord Neuberger’'s citation of Mr Justice Nicholls’' observation that:

“"...if, however liberal may be the approach of the court, the meaning is one which the word or phrase [could not] bear, [Mr Justice Nicholls could not] ...see how … the court [could] declare that meaning to be the meaning of the word or phrase...”"

65. He also relied upon Mr Justice Nicholls’' view that:

“"...varying or contradicting the language used, would amount to re-writing [of a will which was] ...to be achieved, if at all, under the rectification provisions in section 20.”"

Mr Lakin submitted that to construe the object of clause 3 of the will as being Mrs Jagger would involve varying or contradicting the language used and that that could not be achieved by a process of interpretation.

66. On the issue of rectification, the starting point was said to be the threefold test laid down by Mr Justice Chadwick in the leading case of Re Segelman decd [1996] Ch. 171 at page 190. On the issue of rectification, I was taken to what was said by Lord Neuberger in Marley v Rawlings at paragraphs 27 and 70 and following. Mr Lakin submitted that notwithstanding the decision Marley v Rawlings, the distinction identified by Mr Justice Chadwick at page 184 of Re Segelman still applied and was still a valid distinction:

“"...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) do not achieve the objective which he and the testator intended.”"

67. In such a case, the remedy of rectification was said not to be available. That was recognised in Williams on Wills at paragraph 6.2 notwithstanding the decision in Marley v Rawlings. The introduction of words to which the draftsman had applied his mind with a proper understanding of these instructions, but which did not achieve the objective that she and the testator had intended, was not a clerical error for the purposes of section 20(1)(a) of the 1982 Act.
68. In support of that submission, Mr Lakin cited observations of His Honour Judge David Cooke sitting in the Birmingham District Registry in the case of Kell v Jones [2012] EWHC B30 (Ch). He took me in particular to what was said at paragraph 28 and submitted that the present case was not one that fell within the class of case where the consideration given to a clause by the draftsperson had been so slight or fleeting that it could not truly be said that he or she had adverted to the significance of effect of the words that were actually used. This case was not an example of that phenomenon.
69. Mr Lakin also referred me to what had been said after Marley v Rawlings on the subject by Mrs Justice Asplin in the case of Reading v Reading [2015] EWHC 946 (Ch), reported at [2015] WTLR 1245. He referred in particular to, and relied upon, what was said at paragraph 51. There, Mrs Justice Asplin said that if she had not come to the conclusion which she had in relation to the ordinary natural meaning of the words in question, she would have been satisfied that the will had been expressed in such a way as to fail to carry out the intentions of the testator, but she would have found that that was not the result of any clerical error so that rectification could not have been ordered.
70. At paragraph 51, she said that she would have found that the error was not one arising out of office work of a relatively routine nature. There, the draftsperson in question had deliberately used an expression which was unfortunate because he had overlooked the fact that the use of the word ‘'issue’' would not include stepchildren, but that did not fall within the ambit of clerical error. The inclusion of the term was said to be part of the activity of drafting the will rather than its mere preparation. That was said to be the position in the instant case.
71. Mr Lakin analysed the evidence and said that it was insufficient to justify a finding by this court as to what the true intentions of the testator were. Therefore, the claimants had failed to establish the first limb of the threefold test identified by Mr Justice Chadwick in Re Segelman that the will failed to carry out the true intentions of the late Mr Jagger because the court cannot be sure, to the requisite level of proof, precisely what those intentions were. However, even if the court was satisfied as to Mr Jagger’'s intentions, and that the will failed to carry them out, that was not due to a “"clerical error”" and therefore the third limb of the Re Segelman test was not established either.
72. In his written submissions, Mr Drapkin had submitted that, just as with any other document, the court was concerned to ascertain the intention of the testator and to identify the meaning of the words he had used in the context in which he had used them. In the case of a will, section 21 of the Administration of Justice Act 1982 had given the court greater powers to consider extrinsic evidence in so far as the relevant part of the will was meaningless or the language used in it was ambiguous on its face (as Mr Lakin accepted was the case here). Mr Drapkin submitted that something had clearly gone wrong with the drafting of clause 3 of the will because there was no beneficiary expressly named in there and the wording “"I shelve”" in the final set of parentheses was confusing.
73. Mr Drapkin submitted that in construing the will, the court could have regard to the position of Mr Jagger when he made it. He and Mrs Jagger had been married for over 35 years. They had lived at the property. Mrs Jagger owned a half share of the property and she owned no other home. Having regard to those facts, Mr Drapkin submits that the bare words of the clause should be sufficient to support the correct construction of it as one that passed Mr Jagger’'s share in the property to his wife. That could be achieved simply by construing the word ‘'her’' in the last line of clause 3 in the will as referring to Mrs Jagger. He makes the point that there is no other female named in the clause or, indeed, in the will as a whole.
74. If the court is not satisfied that the clause means that Mr Jagger’'s share of the property passed to his wife, then Mr Drapkin submits that on the basis of the words themselves, or, alternatively, taking into account the factual matrix, the clause is meaningless or ambiguous and it has no other obvious meaning than that for which he contends. If extrinsic evidence is to be considered, the court is entitled to have regard to Mrs Jagger’'s evidence of her husband’'s intentions and, crucially, the notes of Mr Jagger’'s instructions to the draftsperson of his will. In addition, reference can be made to the letter sent by Ms Nuttall confirming his instructions and Ms Nuttall’'s own evidence of that. Once the extrinsic evidence is considered, it is clear that the clause should be construed so as to pass Mr Jagger’'s share of the property to his wife. If the court is unable to construe the will in that way, then the court should rectify the will so as to insert the words ‘'to my Wife’' after the word “"gift”" at the beginning of clause 3 of the will under section 20 of the Administration of Justice Act 1982.
75. Mr Drapkin refers to the summary of the jurisdiction propounded by Mr Justice Blackburne in the case of Bell v Georgiou & Anor [2002] WTLR 1105 at paragraph 8, which was expressly endorsed and approved by Lord Neuberger at paragraph 71 of his judgment in Marley v Rawlings. I quote from Mr Justice Blackburne:

“"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 typist, writes something which he did not intend 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 fails to carry out the testator’'s instructions but also what those instructions were.”"

76. Mr Drapkin accepts that the court must consider three issues: first, what were the deceased’'s intentions; secondly, does the will fail to carry them out; and thirdly, does it do so as a result of clerical error? He submits that Mr Jagger’'s instructions to pass his share of the property to his wife can clearly be seen from all of the evidence. To the extent that the court has not been able to construe the will to have the effect of passing Mr Jagger’'s share of the property to his wife, he submits that clause 3 clearly fails to represent Mr Jagger’'s instructions. Once the court is satisfied of that, then he submits that it is clear what those instructions were and that the will fails to carry them out.
77. That leaves only the question whether that failure is the result of a “"clerical error”". He submits that that is clearly the case. Here, clause 3 of the will omits any reference to the object of its gift and it is clear that that is because the words ‘'to my Wife’' have been omitted and so should be inserted by rectification. The error arose as a result of the failure accurately to reflect the instructions given by Ms Nuttall as to the drafting of the will. Essentially, either Ms Nuttall omitted to dictate the words ‘'to my Wife’', or - and more likely - the secretary failed to pick them up, or failed to pick them up accurately. That initial error was then compounded when Ms Nuttall failed to identify the mistake when checking the draft, and then later still when reading it through to the deceased.
78. Mr Drapkin submits that there is no other likely explanation for the omission of necessary words from the will. He points to the fact that clause 3 itself contains another obvious drafting and dictation error in the use of the words “"I shelve”" instead of ‘'as shall.”" The phrase “"I shelve”" has no discernible meaning. If one looks at the terms of the 2007 will, the corresponding clause, clause 3 (c), makes it clear that the words “"I shelve”" are a result of mishearing the phrase ‘'as shall.’' He submits that that is an obvious clerical error of the type incurred in dictation and that it supports the claimant’'s argument that a dictation error is also responsible for the missing words specifying Mrs Jagger as the beneficiary of the clause 3 gift. Therefore, Mr Drapkin invites the court to construe the will so as to pass the deceased’'s share in his property to Mrs Jagger absolutely or, alternatively, to rectify the will by the insertion of the words ‘'to my Wife’' in clause 3 of the will.
79. In his reply, Mr Drapkin emphasised that this is not a case about the limits of the court’'s powers of construction. This is not a case where there is any need for any red ink to be applied to the wording of the will. He submits that one can construe the words of clause 3 as constituting a gift to the wife. He distinguishes the case of Re Williams on the footing that here there was an omission of words from clause 3 of the will. He makes the point that clause 4 (iii) of the will, although strictly unnecessary, distinguishes between the disposition of Mr Jagger’'s residuary estate and the disposition of his share in the dwelling, and indicates that clause 3 was clearly intended to have an independent content. He submits that Mrs Jagger is clear that her husband wanted her to inherit his share in the property. He points to the evidence of Ms Nuttall, the draftsperson of the will, who, notwithstanding her awareness of the potential for conflict between Mr and Mrs Jagger, satisfied herself that Mr Jagger genuinely intended his share in the property to pass to his wife. Mr Drapkin makes the point that Mr Jagger had no reason to change his earlier 2007 will if the content of his new will in relation to the matrimonial home and his share therein was to be the same as the previous disposition effected by his 2007 will. He makes the point that Mr Arthur Jagger can give no direct evidence of his father’'s testamentary intentions or instructions in relation to the making of the 2011 will. Mr Drapkin submits that it is inherently unlikely: (1) that Mr Jagger would leave his wife with no security in relation to the property; (2) that he would execute a will with a clause that he knew to be meaningless; and (3) that a solicitor would allow him to do so.
80. Mr Drapkin submits that no significance should be attached to Mr Jagger’'s failure to return the solicitor’'s terms and conditions in the light of paragraph 7 of the letter of 2 June 2011 and the fact that by continuing to instruct the solicitors he was to be deemed to have accepted them. In any event, the terms and conditions have nothing to do with whether the solicitors failed to understand his instructions or to give effect to them. The clear intention from all the evidence is that Mr Jagger intended his share in the house to pass to his wife.
81. So far as the rectification claim is concerned, Mr Drapkin refers me to paragraphs 71 and 75 of Marley v Rawlings. He submits that the concept of “"clerical error”" is really a very broad one but in the present case it is not necessary to call on its breadth in order to found the necessary jurisdiction to rectify clause 3 of the will. He submits that the concept of clerical error applies whenever a draftsperson has included or omitted a phrase without adverting to its significance and effect. He submits that the present case falls within the first of the categories identified by Mr Justice Chadwick in Re Segelman. In other words, this is a case where words were omitted from a will without adverting to the significance and effect of their omission.
82. He has referred me to my own previous decision in the case of Pengelly v Pengelly [2007] EWHC 3227 (Ch), reported at [2008] Ch 375 at paragraph 23 where I recognise that if words have been mistakenly omitted from a will and the rectification sought was the insertion of a word or words, it might be possible more readily to bring oneself within the case of “"clerical error”". The reason for that was said to be that one is more readily able to find a clerical error where something had been omitted than where it had been inserted, certainly, in a case such as Pengelly, where the judge was satisfied that the error lay in omitting to include the single word “"only”" in front of a class of potential beneficiaries. Mr Drapkin submitted that the case of Kell v Jones was completely different on its facts from the present case.
83. Mr Drapkin submitted that at his advanced age, Mr Jagger would have had difficulty in focusing upon the precise wording of a technical document and that there was no reason for him to think that the effect of a professionally drawn clause in a will would not have operated to give his share in the matrimonial home to his wife. The attendance note of 9^th June 2011 should not be interpreted as meaning that even if Mr Jagger was happy with the wording of the will, he appreciated that something had gone wrong with that drafting, and that he was content with the perpetuation of that error. Mr Drapkin made the point that it had never been suggested to Ms Nuttall that she had made a mistake as to the legal effect of words that she had deliberately chosen to employ. Ms Nuttall had read clause 3 through but she had not spotted that there was an omission of necessary words, something that she readily recognised and admitted, and characterised as a human error when she came to give evidence.
84. Mr Drapkin submitted that there was a clear dictation or typing error and thus a clear “"clerical error”". There was never any suggestion that the words actually used in clause 3 were sufficient to give effect to the testator’'s intentions, and that Ms Nuttall had simply failed to appreciate that they did not do so. Alternatively, if and to the extent that Ms Nuttall did give attention to the wording of clause 3, that attention could only have been fleeting because she had failed to identify what she later admitted to be an error. This was a clear case for an order for rectification, and a clear case for relief if the requirements of section 20 of the 1982 Act were made out. There was no reason for the court to decline to exercise its discretion in favour of rectification of clause 3 of the will.
85. Those were the submissions. That was the evidence. I accept Ms Nuttall as an honest and reliable witness of fact. As I have said, I can derive no real assistance from the evidence of Mrs Jagger or of Mr Arthur Jagger, although I acknowledge that they were doing their best to give such assistance to the court as they could. In my judgment, this is a clear error in the drafting of clause 3 of the 2011 will which is capable of being corrected as a matter of construction.
86. The observations in the authorities that have been cited to me have to be read in the context of the facts of the particular case in which those observations were uttered. In his judgment of Marley v Rawlings, Lord Neuberger recognised that:

“"When interpreting a contract, the court [was] concerned to find the intention of the ... parties, and it [did so] by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’'s intentions”": see paragraph 19.

87. At paragraph 20 Lord Neuberger said that when it came to interpreting a will, it seemed to him that the approach should be the same:

“"Whether the document in question [was] a commercial contract or a will, the aim [was] to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context”".

88. At paragraph 21 Lord Neuberger recognised that:

“"...a contract is agreed between a number of parties, whereas a will is made by a single party.”"

However, that distinction was said to be:

“"...an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned.”"

89. At paragraph 23 Lord Neuberger said that:

“"...subject to any statutory provision to the contrary, the approach to the interpretation of contracts ... is ... just as appropriate for wills as it is for other unilateral documents.”"

90. At paragraph 24, he went on to refer to what he described as a “"highly relevant statutory provision relating to the interpretation of wills”", namely section 21 of the 1982 Act. Having set out its terms, in paragraph 25 Lord Neuberger said that, in his view, section 21(1) confirmed that:

“"...a will should be interpreted in the same way as a contract... However, section 21(2) goes rather further. It indicates that, if one or more of the three requirements set out in section 21(1) is satisfied, then direct evidence of the testator’'s intention is admissible, in order to interpret the will in question.”"

91. The conclusion, as set out at paragraph 26, was that:

“"...where section 21(1) applies, a will is 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) applies, it is possible to assist its interpretation by reference to evidence of the testator’'s actual intention ([that is] by reference to what he told the drafter 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).”"

92. In the present case, I am entirely satisfied that clause 3 of the will is either meaningless or ambiguous in that it does not identify the object of the gift of Mr Jagger’'s share in the house contained within clause 3 of the will. This is not a case like Re Williams where there is any question of attempting to vary or contradict the language used in clause 3 in a way which would amount to a re-writing of that clause. The fact is that here we are concerned with supplying an obvious omission from the wording of a clause in the will. This is not a case like Reading v Reading where an inappropriate expression – in that case ‘'issue’' was used – is sought to be corrected. What is involved here is correcting the omission of a necessary name from a clause which clearly cries out for such a name to be inserted.
93. In my judgment, it is absolutely clear what the nature of the omission is. It is the failure to identify ‘'my Wife’' as the object of the gift within clause 3 of the will. Even without resort to extrinsic evidence, it seems to me that the court can correct the clear omission from clause 3 of the will by reading into it the words ‘'to my Wife’' either after the words, “"I give, devise, and bequeath,”" or immediately before the words, “"And I declare that this gift...”" If one has regard to extrinsic evidence, including evidence of the testator’'s intentions, the position becomes even clearer.
94. Under the 2007 will which, until the execution of the 2011 will, governed the devolution of Mr Jagger’'s estate, his wife had, subject to her surviving her husband, a life interest in his beneficial share in the matrimonial home. She was the equal co-owner of that property with her husband. It was her only home. It was entirely understandable that he should have wanted her to be able to continue to occupy the matrimonial home after his death. If clause 3 of the 2011 will is to be deprived of any meaning and effect, then the consequence would be that, instead of having a life interest in Mr Jagger’'s half share in the former matrimonial home under the 2007 will, that share in the home would fall into residue, and the home would fall to be sold, and the sale proceeds of Mr Jagger’'s half share divided into two, only half of which would fall to go to Mrs Jagger. That cannot have been the intention of Mr Jagger. When one looks to the instructions that I am satisfied he gave to Ms Nuttall, it is quite clear that that was not Mr Jagger’'s true intention. He clearly intended that instead of a life interest in his half share in the matrimonial home, his wife should have his share in that matrimonial home for her own use and benefit absolutely. That can be achieved by reading the words ‘'to my Wife’' into clause 3 of the will.
95. If one looks to see how the error came about, I am entirely satisfied that it was because the typist, who prepared the will on the dictation of Ms Nuttall, misheard what she had dictated and Ms Nuttall simply never picked it up. No doubt she was focusing upon the reference to ‘'my Wife’' and the phrase, “"for her own use and benefit absolutely,”" and failed at any time to spot that there was missing from the clause the words ‘'to my Wife’'. That there was a dictation error is clear from the inclusion within the parenthesis of the declaration in clause 3 of the inappropriate phrase “"I shelve”" which, when one looks to the corresponding clause, clause 3 (c) of the 2007 will, it should clearly be ‘'as shall’'. I strongly suspect that although it is not the most appropriate place at which to insert the phrase, the words ‘'to my Wife’' were dictated at the end of clause 3 of the will and were misheard as the word “"continuing.”" I am satisfied that this is an error that can be corrected as a matter of construction.
96. If I am wrong in that, however, I must go on to consider the alternative claim for rectification. I have to apply the threefold test identified by Mr Justice Chadwick in Re Segelman. I have to ask first: what were Mr Jagger’'s intentions with regard to the disposition in clause 3 of the will? For the reasons I have given, I have no doubt whatsoever that he intended his beneficial share in the matrimonial home to pass to his wife. If my view on the true construction of clause 3 is wrong, then the will is so expressed that it fails to carry out that intention.
97. There are a number of cases in which judges have indicated, admittedly not in the context of will rectification, that if a document is poorly drafted, then the requirement for cogent evidence of the relevant mistake may be correspondingly reduced. The authorities are considered and analysed at paragraphs 10-12 to 10-15 of the forthcoming (second) edition of Hodge on Rectification. They include statements by Mr Justice Leggatt in Tartsinis v Navona Management Company [2015] EWHC 57 (Comm) at paragraph 86 to the effect that the evidential weight of the document clearly varies according to the circumstances, and that where the meaning of a document is itself a matter of controversy and the subject of competing arguments and interpretation, it may be easier to displace the assumption that the meaning which the court identifies as the proper interpretation correctly records the parties’' common intention than where the meaning of the document is clear and unambiguous.
98. There are other cases in which the court has recognised that the very nature and quality of the written instrument will affect the cogency of the evidence of the parties’' intentions as contained within it. In particular, in the case of Sargeant v Reece [2007] EWHC 2663 (Ch) at paragraph 43, Mr Edward Bartley Jones QC recognised that the strength and force of the entrenched evidential requirement of convincing proof is, to a large extent, dependent upon the quality and nature of the written instrument itself. If the document is poorly drafted, as clause 3 of this will clearly is, or is self evidently on its face conceptually unsound, the requirement for cogent evidence is reduced pro tanto.
99. Having referred to those authorities, however, I emphasise that my decision does not turn on this point. Clause 3 is undoubtedly poorly drafted; but the fact is that this is a case where without either correction by interpretation or rectification, no sensible meaning can be given to clause 3, and the failure to give it any meaning will clearly run counter to the objective of Mr Jagger in changing his 2007 will. One thing is clear: there was no thought in Mr Jagger’'s mind that by revoking his 2007 will he would produce a result less favourable to his wife in relation to his share of the matrimonial home than had applied under the terms of the 2007 will. So I am satisfied to any requisite standard of proof that Mr Jagger intended that his wife should be the beneficiary of clause 3 of the will and that if, contrary to my view on interpretation, that is not the effect of clause 3, then the will fails to carry out Mr Jagger’'s true intention in that regard.
100. That leaves the third question of whether that failure to give effect to Mr Jagger’'s intention is the result of a “"clerical error”". As to that I have no doubt whatsoever. I accept Mr Drapkin’'s submission that this is not a case where there is any need to expand the concept of “"clerical error”". In his judgment in Marley v Rawlings, Lord Neuberger referred to the classic statement of Mr Justice Blackburne in Bell v Georgiou to which I have already made reference. He said that that was the best judicial summary of the effect of the cases so far decided on section 20(1)(a). Marley v Rawlings, in fact, expands the scope of the concept of clerical error; but there is no suggestion that the Supreme Court was intending to impose any restriction upon or qualification of the ambit of Mr Justice Blackburne’'s summary. Mr Justice Blackburne recognised in terms that a clerical error occurs when someone who might be a solicitor, or a clerk, or typist omits something which he intended to insert.
101. Here I have no doubt on the evidence that Ms Nuttall intended to insert reference to Mrs Jagger as the beneficiary of the gift in clause 3 of the will and that either she failed to include that in the dictation, or, as I think is more likely, she was misheard by her secretary who typed out the will. The likelihood is that the secretary misheard the phrase ‘'to my Wife’' and put down “"continuing,”" just as she had put, “"I shelve”" instead of ‘'as shall’'. However, what is clear is that the draftsman intended to include ‘'to my Wife’' in clause 3 and I have no doubt that the testator intended to make a will which, in so far as it was necessary to do so, spelled out in clear terms that the object of the gift in clause 3 was his wife. I can well understand how, amongst the mass of words in clause 3, Mr Jagger should have failed to appreciate, as indeed Ms Nuttall did, that three crucial words, ‘'to my Wife’', had been omitted.
102. So even if I am wrong on construction, I have no doubt whatsoever that even applying the high standard of proof required in a claim for rectification, the claimants have made out their case for rectification of clause 3. So for all the reasons I have given, I would construe clause 3 of the will as including the necessary words of gift to Mrs Jagger: ‘'to my Wife’'. If I had not reached that conclusion on interpretation, I would have ordered the will to be rectified by the insertion of such words. So I will construe the will in that sense and, on that footing, there is no need for any order for rectification.

THE JUDGE: Yes?

MR LAKIN: My Lord, I just wonder if we could just have a five minute comfort break before getting on to the issue of costs.

THE JUDGE: Of course. Is there going to be any lengthy argument on costs?

MR LAKIN: There may well be.

MR DRAPKIN: There may be some argument, my lord.

THE JUDGE: Right. Five minutes then.

MR LAKIN: Thank you.

[Short adjournment]

MR LAKIN: My lord, I am grateful for the time that you allowed us. In terms of costs, which is the only outstanding matter, the defendants’' position is that the costs should either be paid by Southerns solicitors or come out of the estate. I base the primary submission that Southerns should pay on the contentions as set out in Marley v Rawlings (Number 2) [2014] UKSC 51, and you will find the Supreme Court judgment behind tab 12 in my learned friend’'s bundle.

THE JUDGE: Yes.

MR LAKIN: This is when, having decided Marley v Rawlings, the issue of costs came to be decided in the Supreme Court, the first pages of which are taken up with all the competing views of the various counsel that were present, but the relevant part of the judgment on costs starts at paragraph 5 of the judgment which is on page 170 of the report.

THE JUDGE: Yes.

MR LAKIN: It starts with:

“"5 On the face of things at any rate, it is possible to justify more than one different order for costs in this unfortunate case. I describe the case as unfortunate, because it has involved a hearing in the High Court, a hearing in the Court of Appeal, and a hearing in the Supreme Court, with each side represented by experienced counsel and solicitors, in order to reach a final decision as to how an estate of £70,000 is to be distributed. Even if the costs have been kept at a modest level at all stages, there is unlikely to be much, if anything, left in the estate if the only order in respect of costs which this court makes is that primarily sought by the [defendants], namely all parties’' costs being paid out of the estate.

6 If there had been no question of negligence on the part of the Solicitor, it would have very difficult to decide what order to make as between Mr Marley and the [defendants]. On the one hand, there is considerable force in Mr Marley’'s argument that, although this litigation relates to the validity of a will, and it is a case where both parties can say that they had a reasonable argument, it was ultimately hostile litigation between two parties fighting over money, and that, in those circumstances, the normal rule of ‘'loser pays’' applies, so that Mr Marley should receive his costs from the [defendants]. There is some support for this in the authorities. On the other hand, the authorities also reveal that, where there is an unsuccessful challenge to the validity of a will, and the challenge is a reasonable one and is based on an error which occurred in the drafting or execution of the will, the court often orders that all parties’' costs come out of the estate.”"

Of course, you will notice there, my lord, that the error is in the drafting or execution of a will. Clearly here we are dealing with an error in the drafting:

“"7 In the present instance, therefore, and still ignoring the possible liability of the Solicitor, there is a case for saying that Mr Marley should recover his costs from the [defendants] because they took their chance in hostile litigation and lost, but there is equally a case for saying that the correct order is that the costs of all parties should be paid out of the estate, not least because the cause of the error was in the execution of the will, and the stance adopted by the [defendants] was far from unreasonable, as is evidenced by the fact that they succeeded both at first instance and in the Court of Appeal. A pragmatic approach might well suggest that, if the estate had been very substantial, the correct order would be to direct that costs be paid out of the estate, but one should hesitate long and hard before making such an order in a case such as the present, where the estate is modest: it would deprive the successful party, in this case Mr Marley, of any benefit from the litigation or from the estate.

8 However, this is not a case where it could possibly be right to ignore the position of the Solicitor. Indeed, there is, at least in terms of broad common sense, considerable attraction in the notion that the Solicitor should bear all the costs, in the sense that he was the person whose unfortunate error was responsible for the litigation. On the other hand, as the insurers point out, (1) a court should always be wary before making an order for costs against a third party, (2) it would, at any rate on the face of it, be odd to require the Solicitor to pay the [defendants’'] costs, given that he owed no duty to the [defendants], and (3) it was not the Solicitor’'s fault that the [defendants] chose to fight the case.”"

The court considers those and then at G continues:

“"10 ... Further, the Solicitor has no defence whatsoever to a damages claim from Mr Marley, and therefore this is a particularly strong case for holding a third party liable for costs. As to point (2), given that the [defendants’'] decision to fight this litigation was not unreasonable, it would be harsh if they had to pay any substantial costs, as explained above. Consequently, there is considerable force in the notion that they should obtain their costs out of the estate. However, if that happened, those costs would be ultimately borne by Mr Marley, because he is entitled to the estate, and he would suffer to the extent that it is diminished by the [defendants’'] costs, and therefore could recover that diminution from the Solicitor.”"

Then the conclusion is in paragraph 12:

“"12 In those circumstances, rather than ordering that the parties receive all their costs out of the estate, and leaving it to Mr Marley to recover the costs from the Solicitor, and leaving it to the Solicitor to be indemnified by the insurers, it seems to me that, assuming that the [defendants] had funded the litigation traditionally, it would be appropriate to order that the insurers pay all the costs of Mr Marley and the [defendants] in relation to these proceedings throughout. I take some comfort from the fact that this was the order which was agreed on behalf of the negligent solicitor in not dissimilar circumstances in In re Bimson [2010] EWHC 3679 (Ch), an agreement which ... Henderson J referred to as ‘'very proper,’' and that in Gerling v Gerling ... HH Judge Hodge QC said in a similar case that he ‘'assume[d] that there will be no order as to costs because the costs are going to be borne by the insurers acting for the solicitors who drafted the Will.

13 Such an order would therefore be appropriate in relation to the costs up to and including those incurred in the Court of Appeal, but it is now necessary to consider what order is appropriate in respect of the [defendants’'] costs in the Supreme Court, given that their solicitors and counsel were acting under CFAs.”"

So, in the circumstances, the Supreme Court held that it was appropriate to make, in effect, a third party costs order.

THE JUDGE: Have the solicitors agreed to be responsible for the parties’' costs?

MR LAKIN: Well, as you rightly pointed out in your judgment, there is a tacit acknowledgment in the very first letter that goes out in that the parties were invited to seek independent legal advice, but to:

“"...contact [the writer] prior to doing so so that I can ensure that you do not have to bear the costs of ... this advice.”"

However, I recognise that, as of today, the solicitors are not a party currently to these proceedings.

THE JUDGE: Yes.

MR LAKIN: Under 46.2, my lord, which is at page 1535 in the current White Book, CPR 46.2 says:

“"Where the court is considering whether to exercise its power under section 51 of the Senior Courts Act 1981 (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings, that person must –

(a) be added as a party to the proceedings for the purposes of costs only; and

(b) be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.”"

We say given the wording or the comments of the Supreme Court, the whole basis for this case was the error - in fact the clear negligence - of the solicitor of Southerns and that was the genesis of all this litigation. Further, we would say if the matter comes to it, despite Southerns saying in its very first letter that they have obtained the will file, their complete failure to disclose anything meaningful upon which a sensible decision could be made prior to issue of these proceedings. Therefore, we say there is a whole host of reasons why they should be responsible for the costs of all these parties.

THE JUDGE: Yes.

MR LAKIN: Therefore, my submission is that Southerns should be added as a party for the purposes of costs pursuant to 46.2.

THE JUDGE: Yes.

MR LAKIN: And suitable directions given for a hearing where the court can consider all the competing parties’' views including those of Southerns and come to terms as to what costs order it should or should not make, but in light of all the evidence and all the submissions which no doubt Southerns and/or their insurers would want to make.

THE JUDGE: Yes. Yes, thank you. Mr Drapkin?

MR DRAPKIN: My lord, we say that this case, this matter, has been ordinary hostile litigation in the general manner of things and that the general order as to costs should apply. Costs should follow the event. My learned friend seeks to say that this case is like Marley v Rawlings. This case is not like Marley v Rawlings. In that case, the claimants had the benefit of a solicitor’'s insurance indemnity from quite an early stage whereas although my clients act today with the benefit of an indemnity from Southerns rather than their insurers, a partial indemnity, that was only granted a few days before trial, possibly only executed on the morning of the trial. In those circumstances, it is not appropriate to consider a third party costs order in the way of Marley v Rawlings. Moreover and perhaps more importantly, one of the primary considerations in the judgment that my learned friend has just taken you to is that the defendants’' stance was reasonable in Marley v Rawlings and Lord Neuberger (I think it is still Neuberger) makes reference to it being reasonable by reason of the fact that they were successful in the High Court and in the Court of Appeal which is, on any judgment, a pretty good test of [inaudible]. Here, the defendants have not been successful at first instance. They have not been successful on construction and they have not been successful on rectification. You gave judgment a few minutes ago, my lord, in which you said that it was a clear case where something had been missed out. So they should have realised at a very early stage indeed.

THE JUDGE: So what order do you say I should make as to costs?

MR DRAPKIN: Well, we seek an order that the defendants pay the claimants’' costs in the usual manner and bear their own. We say that it is not appropriate to make an order against Southerns for the reasons I have just given and it would not be appropriate to join them. We will say that because of the complete lack of reasonableness in the defendants’' attitude to this litigation, they have pursued it at every stage in a very hostile manner. They have not made any offers or anything that we have been taken to. This is not a case where with or without considerations of third party costs orders and professional agents claims and so on, it would be appropriate for costs to come out of the estate.

THE JUDGE: You say you have got an indemnity from Southerns.

MR DRAPKIN: Yes.

THE JUDGE: So if I make no order as to costs, the defendants’' costs will lie with them and you will be able to look to Southerns for your costs.

MR DRAPKIN: The indemnity will not cover them all, it is fair to say. It is certainly limited to assessed costs.

THE JUDGE: Yes, but any order against the defendants would only be limited to assessed costs.

MR DRAPKIN: Indeed, my lord, but it is not...

THE JUDGE: So it would be no better if I make no order than if I make an order for costs against the defendants because, on either view, the costs will fall to be assessed.

MR DRAPKIN: That may be the case, but my submission is that you should make an order against the defendants.

THE JUDGE: Yes.

MR LAKIN: My lord, if I can just come back briefly.

THE JUDGE: Yes.

MR LAKIN: Certainly in terms of whatever indemnity they have or have not got, we have never seen a copy of that, so we cannot say.

THE JUDGE: No.

MR LAKIN: In relation to costs, what we say is highly relevant is one of the things obviously under 44.2 that you have to consider as the conduct of the parties beforehand.

THE JUDGE: Yes.

MR LAKIN: If you look at the correspondence before, you have the initial letter that my lord has already made reference to. You can then see at page 211 that the first defendant, Arthur Jagger, instructs Farnworth Rose and they write back on 27^th May 2014.

THE JUDGE: Yes.

MR LAKIN: They ask for the relevant documents in the will file which is a perfectly reasonable request given the terms of the initial letter. That is said and of course they make specific reference in the first letter that they had actually retrieved the will file from storage. So it is a file they have in their possession. That is dated 27^th May. There is a chasing letter on 17^th June which does not get responded to, and there is a further chasing letter on 22^nd August. The response from Southerns eventually is dated 10^th September which is at page 214, with which they send us a copy of the letter of 2^nd June which is the letter enclosing the draft will and that is it despite the request for the relevant passages of the will file. They then, despite having not responded for several months, write on 24^th September giving Mr Jagger 6^th October to respond, as I say, despite the fact that they have taken several months with total inactivity. On 1^st October is the response pointing out wanting the file copy of the letter dated 2^nd June, a copy of the signed terms and conditions, and a copy of the draft will sent under cover. The response again is saying we are seeking permission, but again no further documentation is sent. Then on 13^th November, there is sent a copy of the draft will. However, again, none of the corresponding file notes that we have spent the best part of two days looking at in this trial. Then the response on 18^th November is:

“"Thank you for your letter dated 13^th November with enclosures. We note that you have not included a copy of the signed and dated terms and conditions.”"

Then on 21^st November, the reply is:

“"Please be advised, like many clients, there are no signed terms and conditions on the business file. Apologies for not advising you earlier.”"

Then a further response dated 12^th January:

“"As you may have gathered, our client’'s requests for information... He is trying to ascertain the reason why his father would take the unexpected decision to alter his will made four years prior to his last will leaving his share of his house to his wife without saying anything to him or his family. We note the comment made in paragraph 7 of your letter dated 2^nd June 2011 where he is asked to sign and return a copy of the terms and conditions immediately which says, ‘'I can then be confident that you understand the basis upon which I act’'. He did not do this [inaudible] confident that he did understand. Our client feels that his actions are completely out of character and that his side of the family are at a loss to understand what has occurred. It is clear from the tone of the letter of the deceased of 2^nd June 2011 that the writer realised that he was being controversial. Normally, such circumstances are in a file note explaining the reason why he was cutting his own family out of a sizeable part of the estate. Are you able to provide a copy of any such file note so that his family can understand the reason for the decision?”"

So, again, quite reasonably asking for the file notes confirming what the instructions were given that they say that there is an error in those instructions. All that is forthcoming are the letters that are then... If you look at 79, there is a letter to all the individuals who were not represented, all the other defendants in basically the same terms as the initial letter. Then a letter to Farnworth Rose:

“"We write in relation to the above matter. We confirm that proceedings have been issued.”"

So they start off from a premise saying, “"We have obtained the will file and we are going to pay for any advice that you may receive”", and then when reasonable requests are made for documentation, they are simply ignored. So no reasonable decision could be made prior to the issue of this claim.

Oddly enough, if you look at the particulars of claim, it is asserted that the pre-action protocol was complied with. As is plainly the case, that simply is not true. There was no pre-action letter because any pre-action letter would have to exhibit the relevant file notes upon which was relied. The first time that the defendants saw sight of the relevant file notes was upon disclosure and in terms of conduct, I am instructed it is the defendants who have been asking for mediation throughout this matter and it is the claimants who have refused. For all those reasons, we say that is basis alone why Southerns should pay the costs of these proceedings.

THE JUDGE: Yes. Do you want to come back on this?

MR DRAPKIN: I would be grateful, my lord. My learned friend has taken you to various letters. If I could take you to a couple; at tab 63, that is the letter that was sent out with the draft will.

THE JUDGE: Yes.

MR DRAPKIN: Sorry, with the will to Mr Jagger’'s residuary beneficiaries explaining the clerical error, inviting them to take advice if they wanted, but inviting them to agree. My lord, I say [inaudible], it is notable that they were given an opportunity to agree immediately and did not take it. They were also given an opportunity to take advice. Then again, on 5^th February 2015, we have got a letter at tab 81 and this is the letter that was sent to Farnworth Rose, but I think it is correct to say that letters were also sent to the unrepresented defendants as well in very similar terms. Now, by the time this letter is received, the parties have had chance to agree on 9^th April 2014, the disclosure of the 2^nd June letter on 10^th September 2014 which you see at 70, and they have also had, either at the same time as, or just after, or just before, this letter of 5^th February the claim, the pleadings, and I think I am right in saying Ms Nuttall’'s evidence, her initial affidavit. We find in this letter, the penultimate paragraph:

“"We would invite your client to consent to an order allowing her rectification of the clerical error on this basis and we reserve the right to refer the court to this correspondence on the issue of costs should it be necessary. For the avoidance of doubt, if your clients [inaudible] are not content with the order sought or ultimately such an order is obtained, we will seek an order that the defendants be ordered to pay the costs of the application within 21 days.”"

In the letter back a tab at 80, which is a sample of the letters sent to the other defendants, there was an offer at paragraph 4:

“"We are writing to you to provide you with the opportunity of consenting to that application at this stage on the basis that there be no order for costs in these proceedings.”"

MR LAKIN: That letter does not actually point out that the proceedings have already been issued as of the 5^th, of course, according to the other letter.

MR DRAPKIN: Well, they have, but nonetheless, the defendants were given the opportunity to consent and it was made very clear that they were at their own risk as to costs thereafter. By that time, it had been also made clear what evidence the claimants would [inaudible] and [I believe?] that the file note had not been disclosed and was not disclosed for some time afterwards, but they had the letter of 2^nd June and they had a statement from Anna Nuttall, I think am right in saying that it was from Anna Nuttall, saying that what she would do—

MR LAKIN: I do not think that is correct. As I say, the letter behind tab 80 is dated 5^th February. If you look at the letter of 5^th February behind tab 81, it is clear by the time that those letters were written proceedings had already been issued.

THE JUDGE: Yes.

MR DRAPKIN: I do not disagree with my learned friend that proceedings had already been issued. That is how they had obtained the proceedings, the pleadings, and the initial affidavit.

THE JUDGE: Yes. Well, the proceedings were issued on 3^rd February.

MR DRAPKIN: But my point is, my lord, that having received these letters and the proceedings, pleadings, the initial affidavit and the 2^nd June letter, if the defendants chose to push on in clear contravention of what you have found today were their father’'s/grandfather’'s wishes expressed in a manner in his will, the construction of which was quite clear, then they should be at their own risk as to costs.

MR LAKIN: Just finally, at that point there is no question of construction, it was simply rectification, and what was said was a clerical error without any explanation as to how that clerical error had actually arisen or providing the file notes which would clearly demonstrate that such an error had occurred. This whole litigation was wholly unnecessary and could have been avoided if Southerns had simply provided a copy of the will file as requested in the very first letter that Farnworth Rose wrote back.

THE JUDGE: Yes.

MR DRAPKIN: My lord, I would say two more things. Firstly, I am instructed that we cannot find any reference to request for mediation and, secondly, that to the extent that you are not with me that the defendants should be at their own risk as to costs at this stage, by the time the time the disclosure was granted following the CMC, they had had everything that my learned friend suggests would have been reasonable and yet we are here today, several months later at much greater expense. There must come a point in this litigation where they are at their own risk as to costs if it does not arise [inaudible].

THE JUDGE: Yes.

MR DRAPKIN: Thank you, my lord.

103. JUDGE HODGE QC: I have already delivered a judgment on the substantive issues in this litigation. In summary, I have held that, on its true construction, clause 3 of the last will of Mr Jagger dated 10^th June 2011 should be construed as constituting a gift of his half share of the matrimonial home to Mrs Jagger, the second named claimant; and if I am wrong on construction, that the will should be rectified to the same effect. I now have to deal with the issue of costs.
104. The defendants submit that costs should be paid by Southerns Solicitors, the firm responsible for the drafting of the 2011 will, or, alternatively, that the costs should come out of the estate. The claimants submit that the costs should be paid by the defendants. I have been referred by both counsel to the correspondence that has passed between the parties’' former solicitors, both prior to and immediately after the issue of the claim form, which took place on 3^rd February 2015.
105. By CPR 44.2, the court has a discretion as to whether costs are payable by one party to another, but if the court decides to make an order about costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, although the court may make a different order. In deciding what order, if any, to make about costs, the court is required to have regard to have regard to all the circumstances, including the conduct of all the parties, whether a party has succeeded on part of its case, even if that party has not been wholly successful, and any admissible offer to settle made by a party which is drawn to the court’'s attention. I have not been alerted to any relevant admissible offer to settle. I have no doubt in the present case that the claimants are the entirely successful party. Therefore, subject to any relevant circumstances of the case, including the conduct of the parties, I would normally order the defendants to pay the claimants’' costs.
106. Mr Lakin disputes the claimant’'s entitlement to an order for costs. He does so on the following basis: First, that in Marley v Rawlings (Number 2) [2014] UKSC 51, reported at [2015] AC 157, the Supreme Court ordered that the costs of a contested will rectification claim of all parties should fall on the negligent solicitors who had been responsible for the error in the execution of the relevant will. That was, in fact, a crossed wills case where each of two testators making mirror wills had executed, by mistake, the will of the other. The Supreme Court recognised that the defendants had taken their chance and had lost in hostile litigation; but it took the view that it had not been unreasonable for the defendants to have defended the claim, as evidenced by the fact that they had been successful before Mrs Justice Proudman at first instance, and that her decision had been affirmed on appeal by a Court of Appeal consisting of the present Lord Chief Justice, Lady Justice Black, and Lord Justice Kitchin.
107. In the present case, I am satisfied that it was not reasonable for the defendants to have contested either the rectification claim or the construction claim. In my judgment, Marley v Rawlings is to be distinguished on that basis. Is there, then, anything else in the circumstances of the case that should militate against the usual cost order against the defendants as the unsuccessful party?
108. It does seem to me that there are two relevant features of this case. First, that right at the outset of the case, the solicitors then acting for the defendants, Farnworth Rose, had requested the relevant documents in the will file showing the intention of the testator to gift his half share in the house to his wife, prior to the issue of proceedings. The claimants’' solicitors, then the solicitors responsible for the mis-drafting of the will, had disclosed only a letter to the client of 2^nd June 2011 and the original draft will. They had not produced the full will file. They did not do so until disclosure was ordered in the instant litigation. Secondly, it was only on the first morning of this trial that permission was given, without opposition from the defendants, for the claimants to amend the claim form to include, in addition to the existing claim for rectification, a claim for construction of the will, which eventually succeeded. Those are matters of conduct, and part of the circumstances of the case, to which I must have regard. However, I must also bear in mind that at the hearing before District Judge Matharu on 18^th May 2015 it had been recognised that the issue of the true construction of clause 3 of the will was one that could be addressed by the court. Indeed, the true construction of the will was a necessary preliminary to the hearing of the claim for rectification. Secondly, the full 2011 will file was disclosed as part of the usual disclosure exercise, apparently early in June of 2015. Nevertheless, this case has proceeded to an expensive two day High Court witness action.
109. Another relevant circumstance I have to bear in mind is that, as I would have expected, Southerns, the solicitors responsible for the negligent drafting of the will have, I am told, given an indemnity as to costs to the claimants. Mr Drapkin points out that that indemnity is limited only to the costs that will be allowed on a detailed assessment; but, equally, that will apply to any costs order made against the defendants. Anything over and above that which will be allowed on an assessment of costs will fall to be borne by the claimants in any event.
110. In my judgment, it would not be appropriate to make an order for costs in favour of the defendants. Had they made an offer to settle the litigation shortly after disclosure of the full will file in June 2015, and had they not fought this trial to its bitter end, then I might have been prepared to make some qualified order for costs in their favour; but the fact is that they have fought the case to its bitter end, and there is no reason to think that if the will file had been produced earlier, then their attitude would have been any different. I do bear in mind the candid way in which Mr Arthur Jagger gave his evidence and the fact that he behaved perfectly properly throughout the course of the trial in relation to the giving of his evidence; but the fact remains that the defendants were unsuccessful and there is no reason to think that earlier disclosure of the will file would have avoided the need for this case to proceed to trial. They have lost; and they have lost not only on the recently raised issue of construction, but also on the cause of action that has formed the heart of the case throughout which was rectification.
111. So it seems to me that there should be no order for costs in the defendants’' favour. Equally, however, it seems to me that it would be unjust to make an order for costs against the defendants. They are not the authors of the claimants’' misfortune. Those authors are Southerns. They have rightly and properly accepted their responsibility for the claimants’' costs. In my judgment, it would not be right to make an order for costs against the defendants when the burden of costs is going to fall upon the party who is rightly responsible for this litigation in the first place, namely the solicitors.
112. I should make it clear that had I been minded to make any order for costs in favour of the defendants, it would have been an order that the costs be borne by the defendants’' own share in the estate. It would have been wholly wrong for any part of the costs to have fallen on Mrs Jagger’'s part of the estate; and therefore, any order for costs in favour of the defendants would have been something of a pyrrhic victory because it would have fallen to be borne out of their own part of the estate in any event. However, it seems to me that the just order in this case, bearing in mind all the circumstances and that the ultimate responsibility for this whole litigation lies with the solicitors, is that I should make no order as to costs at all so that the defendants will bear their own costs and the claimants will be able to look to their indemnity from Southerns to bear the recoverable costs that they have borne in this litigation. So I make no order as to costs; but only on the footing that I am told that Southerns will bear the claimants’' costs.

THE JUDGE: Is there anything else?

MR LAKIN: No, my lord.

THE JUDGE: Very well.

MR DRAPKIN: I presume my learned friend will draft an order in those terms.

THE JUDGE: Yes. What I think you should do in the order is to provide [inaudible] that I have construed the will in the way that I have, but also to include some recording or recital that had the court not construed the will in that way then it would have ordered the will to be rectified so that that is clear on the face of the order and then there will be no order as to costs. Of course, the order should include the name of each counsel in the recitals.

MR DRAPKIN: Yes, my lord.

THE JUDGE: It is amazing how many orders are still coming in which do not. Now, can I thank both counsel for their assistance. I know that Mr Lakin’'s clients have not been successful, but that is not due to any deficiency whatsoever on his part. I am satisfied that he has said all he could possibly have said in support of the defence to the claim. What I will do is to return your authorities bundle to Mr Drapkin.

MR DRAPKIN: How is it best to send you the minute of order, my lord?

THE JUDGE: Sorry?

MR DRAPKIN: How is it best to send you the minute of order?

THE JUDGE: If you send it to the chancery email address.

MR DRAPKIN: Yes.

THE JUDGE: Yes, the clerk can let you have it, but I think you may have it because I think you lodged it—

MR DRAPKIN: The same email address [inaudible].

THE JUDGE: By email anyway. I think I had better retain the trial bundles in case I am asked for a transcript. Do not forget to include the provision in the order giving you permission to amend to include the construction claim as well.

MR DRAPKIN: Thank you, my lord.

THE JUDGE: So I will give Mr Drapkin carriage of the order and I had better keep these. I hope you both have uneventful journeys back to London and Leeds.

MR DRAPKIN: Thank you, my lord.

MR LAKIN: Thank you, my lord.

[Hearing ends]