Jump & Anor v Lister & Anor

This is my extemporary judgment in the case of Mrs Sandra Jump and Mrs Suzanne Jones (as claimants) and Mr Harry Dow Lister and Forresters Solicitors Limited (as defendants), claim number C30MA158. The claim concerns the estates of the late Mr John Raymond Winson and his late wife Mrs Mable Winson. Mr and Mrs Winson made mirror wills on 17^th August 2010 by which, in simple terms (and subject to two minor specific gifts by Mrs Winson) each left their estate to the other, but if that gift failed, they each:

According to the grant of probate of Mrs Winson’s will dated 26^th October 2012, the net value of her estate is £797,024. According to the grant in respect of Mr Winson’s estate dated 3^rd September 2013, its net value is £967,901.

The problem that has arisen in the administration of the two estates is that on 6^th October 2011 Mr and Mrs Winson were both found dead at their home in Penrith in circumstances in which it has not been possible to determine who died first. As a result, it is common ground that Mr Winson, who was the younger of the two, is deemed to have survived his wife as a result of the “commorientes rule” in section 184 of the Law of Property Act 1925.

As a preliminary matter, the claimants’ names appear incorrectly on the original Part 8 claim form because the correct name of the first claimant is Sandra Jump (not Sandra Jones) whilst the second claimant’s correct name is Suzanne Jones (not Suzanne Jump). Without objection from the defendants, I give permission to amend the claim form to correct these misnomers.

The first defendant is a solicitor and the draftsman who prepared both wills for Mr and Mrs Winson. Together with the claimants, he was appointed a substitute executor under both wills and he joined with them in obtaining grants of probate in relation to both estates. However, as a result of this, and other, disputes between the claimants and the first defendant concerning the administration of the estates (which are not before the court today) he was removed as an executor on his own application by order of District Judge Knifton dated 20^th February 2015. The second defendant is the solicitors’ practice by which the first defendant is, and was, employed. The defendants have been joined as parties to enable the contention that the pecuniary legacies should be paid only once, out of Mr Winson’s estate alone, to be fully advanced given that neither the claimants nor any of the pecuniary legatees wish to advance that argument. The claimants have threatened to bring professional negligence proceedings against the second defendant in relation to both the will drafting and other matters arising in the administration of the estates although I understand that no such proceedings have yet been issued.

The claimants are represented by Mr Elis Meredydd Gomer, instructed by Myerson Solicitors LLP of Altrincham. The defendants are represented by Mr Edward Hewitt, instructed by Beale & Co Solicitors LLP of Bristol.

The question for the court to determine is whether the survivorship clause set out in clause 11. 2 of Mrs Winson’s will applies to the gift she made to her husband by clause 6.2 of that will. If it does not (as the defendants contend), then Mrs Winson’s estate passed to Mr Winson pursuant to clause 6.2 of her will, and Mr Winson’s estate then passes in accordance with clauses 6 to 10 of his will (because the gift to Mrs Winson made by clause 5.2 of his will fails as she is deemed to have predeceased him). It is common ground that that this accords with the intentions of both Mr and Mrs Winson. On the other hand, if the survivorship clause does apply (as the claimants contend), the gift made by clause 6.2 of Mrs Winson’s will also fails (because, although Mr Winson is deemed to have survived his wife, he did not survive her by 28 days) and, as a result, neither estate passes to the survivor and the specific gifts and the pecuniary legacies totalling £214,500 will have to be paid out twice (once from each estate). As Mr Gomer put it, if the claimants’ interpretation is correct, and the survivorship clause applies to the whole will in the case of each estate, each will takes effect as though its primary gift had failed, with the result that each of the two estates must be administered in accordance with the alternative distribution set out in both wills and, accordingly, the specific legacies must be paid out twice. As such, what Mr Gomer characterised as “the somewhat surreal situation” would arise whereby neither spouse would inherit the other’s estate due to both of them having been deemed to die before the other. It is common ground that this is not what either Mr or Mrs Winson intended. The defendants’ constructions of the wills avoids this result because if the provision in the wills relating to the primary gift is entirely separate from the remainder of the will, and so is unaffected by the survivorship clause, the position would be that Mrs Winson died first and her estate passed to her husband so that the only payment of specific legacies would be from Mr Winson’s estate.

The court is therefore required to determine the true meaning and the combined effect of the two mirror wills and, specifically, the proper construction of three clauses of the will of the late Mrs Winson, clauses 6.2, 6.3, and 11.

Mr Hewitt points out that, somewhat unusually, it is the claimants who argue for the construction which results in the pecuniary legacies being paid twice over, despite it being contrary to their financial interest as residuary beneficiaries. Mr Gomer invites the court to note that the defendants’ assertion that the claimants have “decided to advance the construction of the wills most disadvantageous to them” is both incorrect and unfair. The claimants consider that their interpretation is the objectively correct one (although they would prefer the defendants’ interpretation to be correct) and that this situation has been created by the defendants’ mis-drafting of the wills. A number of the charities who are named in the wills (represented by Wilsons Solicitors LLP) have made it entirely clear that they believe the claimants’ interpretation to be the correct one and that they would not accept the defendants’ interpretation unless the court so ordered. Mr Gomer submits that it is difficult to see what else the claimants are to do in the circumstances. In their role as executors, the claimants need to know how to administer the estates in accordance with their duties, in particular because they would be liable as executors to pay the specific legatees in respect of both wills if the claimants’ interpretation is correct. The court is therefore asked to adjudicate upon the correct construction of the wills.

Mr Gomer makes the further point that during his time as an executor, the first defendant had begun to make the double payments to the specific legatees that the claimants’ construction would mandate and that he had also taken advice from counsel (Mr Richard Chapman of 18 St John Street). The full advice, which was apparently given by telephone and of which no note seems to exist, has not been disclosed to the claimants; but Mr Gomer submits that it is reasonably to be inferred that the construction now advanced by the defendants is not the position that was taken prior to the involvement of the second defendant’s insurers and their solicitors. The instructions to counsel are at pages 103 to 106 of the hearing bundle and a letter dated 23^rd May 2014 from the first defendant to the claimants summarising counsel’s advice is to be found at pages 57 to 58.

The pecuniary legatees were consulted prior to the issue of these proceedings. Most of them have not responded but some of the charities that have done so have indicated that, because the claimants are themselves advancing the argument most favourable to the charities, they are content to allow the claimants to advance that argument and do not wish to increase the costs of the proceedings by being joined. Notices under CPR rule 19.8A have been served on the pecuniary legatees pursuant to paragraph 5 of the order of District Judge Bever dated 5^th May 2016 (as varied by paragraph 1 of the order dated 16^th June 2016) but I understand that no substantive responses have been received.

The evidence is contained in the witness statements of the first claimant, Mrs Sandra Jump, dated 11^th February and 21^st March 2016 together with exhibit SJ1 and in the witness statement of the first defendant, Mr Harry Dow Lister, dated 4^th March 2016 together with exhibit HDL1 (which contains the will file). I heard no oral evidence. Both counsel had produced helpful written skeleton arguments which I had had the opportunity of pre-reading. Each counsel addressed me in argument for about an hour. Mr Gomer replied very briefly to Mr Hewitt’s submissions.

I can take the background to this Part 8 claim form from Mr Hewitt’s skeleton argument. Mrs Winson was born on 24^th September 1923. Mr Winson was born on 14^th August 1926 and he was therefore some three years younger than his wife. The couple had no children. They were close friends of the parents of the first defendant whom they approached in or about September 2009 with a view to preparing wills for them both. The will-making process appears to have taken nearly a year. The will file shows that the first defendant opened a new file on 9^th September 2009 and the first letter to Mr and Mrs Winson was written on the previous day. However, the wills were not ultimately executed until 17^th August 2010. The correspondence suggests that Mr and Mrs Winson were responsible for most of the delay.

The first defendant explains in his evidence (at paragraph 7 of his witness statement) that he recalls that when he visited Mr and Mrs Winson on 17^th August 2010 to assist with the execution of the wills, Mr Winson asked him to confirm that the pecuniary legacies (which totalled £214,500) would only be paid once, upon the second death, and that the first defendant confirmed that this was the case. Apart from that, there appears to be no direct evidence as to whether Mr or Mrs Winson intended the survivorship clause to apply to the gift of residue to Mr Winson. At paragraph 8 of his witness statement, the first defendant states that the 28 days’ survivorship clause was taken from a book of will precedents and that as far as he can recall: “The survivorship clause was never expressly discussed with them.”

Mr and Mrs Winson were found dead at their home in Penrith on 6^th October 2011 aged 85 and 88 respectively. An inquest was held and the coroner concluded that they had both died of natural causes, but he was unable to determine which had died first. It is common ground that, in those circumstances, the “commorientes rule” set out in section 184 of the Law of Property Act is engaged. Headed “Presumption of survivorship in regard to claims to property”, this provides:

“In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and, accordingly, the younger shall be deemed to have survived the older.”

The effect is that Mr Winson, who was the younger, is deemed to have survived his wife.

Both wills are in typescript. Mrs Winson’s is six pages long (plus a cover page) and contains eleven clauses. Mr Winson’s is five pages long (plus a cover page) and contains ten clauses. Clause 5 of Mr Winson’s will provides:

“5.

RESIDUE

I give to my executors my estate anywhere in the world including any property over which I have a general power of appointment

TO HOLD it on trust:

5.1

to pay my debts, taxes, and funeral and testamentary expenses;

5.2

to pay the residue to my wife Mabel Winson; but if this gift fails

5.3

to divide the residue in accordance with clauses 6 to 10 hereof.”

As Mr Winson is deemed to have survived his wife, there is no difficulty in construing his will: the gift of residue he made to Mrs Winson by clause 5.2 of his will failed and therefore clause 5.3 provides that his residuary estate is to be divided in accordance with clauses 6 to 10. The question that the court has to determine is whether the gift of residue Mrs Winson made to Mr Winson by clause 6.2 of her will took effect or failed, and this depends on whether the survivorship clause in 11.2 applies to it. Because a will must be construed by having regard to the contents of the will as a whole, it is necessary to consider Mrs Winson’s will in its entirety.

By clause 1, Mrs Winson revoked “all former wills”. By clause 2.1 she appointed Mr Winson as her executor “but if he is unable or unwilling to act” then she appointed the claimants and the first defendant instead. Clause 2.2 provides that:

“References to my executors include anyone who acts as my personal representative.”

By clause 3, Mrs Winson expressed the wish to be buried in a particular cemetery following a funeral service at Barton Church, Penrith, Cumbria; and she gave her executors the power to pay “any amount they think fit to erect a memorial”. By clause 4, Mrs Winson provided that if inheritance tax or any other form of death duty was payable on her free estate, her executors were to pay it from the residue of her estate. It is worth setting out clauses 5 and 6 in full:

“5.

SPECIFIC GIFTS

5.1

I give my teddy bear collection jointly to Mrs Suzanne Jones and Mrs Sandra Jump both of Watling House, Forest Hill, Hartford, Cheshire, CW8 2AT;

5.2

I give my mother-in-law’s diamond ring to Mrs Audrey Vaughan Furness of Highfield, 4 Gorse Bank Road, Hale Barns, Altrincham, Cheshire, WA15 0AL.

6.

RESIDUE

I give to my executors my estate anywhere in the world including any property over which I have a general power of appointment

TO HOLD it on trust:

6.1

to pay my debts, taxes and funeral and testamentary expenses;

6.2

to pay the residue to my husband John Raymond Winson but if this gift fails

6.3

to divide the residue in accordance with clauses 6 to 11 hereof.”

It is common ground - and I accept - that the cross-reference in clause 6.3 to “clauses 6 to 11 hereof” must be a typographical error which should read “Clauses 7 to 11 hereof” because the cross-reference is otherwise circular. I am satisfied that this is an error of numeration that can be cured by a process of construction.

There is no equivalent clause to clause 5 in Mr Winson’s will. On the other hand, clause 6 of Mrs Winson’s will appears in the same form mutatis mutandis in clause 5 of Mr Winson’s will.

By clause 7 of her will, Mrs Winson:

By clause 8, Mrs Winson gave the following pecuniary legacies free of inheritance tax:

By clause 9, Mrs Winson gave the residue of her estate to be divided equally between the claimants providing that if either share should fail, the failed share should accrue to the other and that if both shares failed then the residue should be divided 50 percent to Cancer Research UK, 20 percent to the Animal Health Trust, 20 percent to the RSPB, 10 percent to the National Trust, and 10percent to the NSPCC. Clause 9 of Mrs Winson’s will appears in identical form in clause 8 of Mr Winson’s will.

Clause 10 provides, in relation to receipt by charities, that Mrs Winson’s executors “may accept as a complete discharge the receipt of any person who appears to be a proper office [sic] of a charity” and expresses the wish that charitable gifts should be used by the respective charities in furtherance of their general charitable purposes. Clause 10 of Mrs Winson’s will appears in identical form in clause 9 of Mr Winson’s will (including the word ‘office’ in place of ‘officer’).

Clause 11, which contains the controversial survivorship clause, provides:

“11.

TECHNICAL CLAUSES

11.1

The Standard Provisions of the Society of Trust and Estate Practitioners (1^st edition) apply, amended as follows:

11.1.1

Standard provision 5 (“trust for sale”) does not apply.

11.1.2

My executors may exercise their powers without consulting beneficiaries, so section 11 of the Trusts of Land and Appointment of Trustees Act 1996 does not apply.

11.2

My estate is to be divided as if any person who dies within 28 days of my death had predeceased me.”

Clause 11 of Mrs Winson’s will appears in identical form in clause 10 of Mr Winson’s will. The STEP Standard Provisions do not contain any survivorship provision.

Against that factual background I turn to the applicable law. The modern approach to the interpretation of wills was explained by Lord Phillips of Worth Matravers (delivering the opinion of the majority of the Privy Council) in Sammut v Manzi [2008] UKPC 58, reported at [2009] 1 WLR 1834, as follows:

“4.

The starting point when construing any will is to attempt to deduce the intention of the testator by giving the words of the will the meaning that they naturally bear, having regard to the contents of the will as a whole. Sometimes it is legitimate to have regard to extrinsic evidence in order to show that words used had a special meaning to the testator, but it has not been suggested that this is such a case.

5.

Extrinsic evidence of the testator’s intention may also be admissible to resolve uncertainty or ambiguity...

6.

There were placed before their Lordships no less than 17 decided cases, some of which involved decisions on wording that bore some similarity with that used in the present case. Little assistance in construing a will is likely to be gained by consideration of how other judges have interpreted similar wording in other cases. Counsel rightly recognised that the starting point must be to look at the natural meaning of the wording of the will to be construed without reference to other decisions or to prima facie principles of construction.”

More recently, in Marley v Rawlings [2014] UKSC 2, reported at [2015] AC 129, the Supreme Court has unanimously held (in the words of Lord Neuberger) as follows:

“19.

When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this 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...

20.

When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context...

23.

...the well-known suggestion of James LJ in Boyes v Cook (1880) 14 Ch D 53, 56, that, when interpreting a will, the court should ‘place [itself] in [the testator’s] arm-chair’, is consistent with the approach of interpretation by reference to the factual context.

24.

However, there is now a highly relevant statutory provision relating to the interpretation of wills, namely section 21 of the 1982 Act (‘section 21’). Section 21 is headed ‘Interpretation of wills – general rules as to evidence’, and is in the following terms:

‘(1) This section applies to a will –

a)

in so far as any part of it is meaningless;

b)

in so far as the language used in any part of it is ambiguous on the face of it;

c)

in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

(2)

In so far as this section applies to a will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation.’

25.

In my view, section 21 (1) confirms that a will should be interpreted in the same way as a contract, a notice or a patent, namely as summarised in para 19 above. In particular, section 21 (1) (c) shows that ‘evidence’ is admissible when construing a will, and that that includes the ‘surrounding circumstances’. 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.

26.

Accordingly, as I see it, save 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 (e.g. 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).”

This guidance has been followed in more recent construction claims including Reading v Reading [2015] EWHC 946 (Ch), reported at [2015] WTLR 1245, a decision of Asplin J; Slattery v Jagger [2015] EWHC 3976 (Ch), a decision of my own; and The Royal Society v Robinson [2015] EWHC 3442 (Ch), a decision of Nugee J.

Mr Hewitt submits that although these decisions involve very different construction issues, and each construction claim is likely to be fact dependent (as the Privy Council made clear in Sammut v Manzi), they are a helpful illustration of the flexible way in which the court seeks to give effect to the testator’s intention when construing a will:

Mr Hewitt referred to these authorities as illustrations of the flexibility of the court’s approach to issues of will construction. He submitted that the court ought not to feel that its hands are tied in giving effect to a testator’s clear intentions and that the court can go beyond the prima facie meaning of the words of the will if the circumstances warrant this.

Both parties were agreed that section 21 of the Administration of Justice Act 1982 was of no application to the present case, although not necessarily for the same reasons. Mr Gomer’s position was that clause 11.2 is neither meaningless nor ambiguous so that section 21 is simply not engaged. Mr Hewitt took the view that section 21 did not assist in the present case because there was no clear, direct, extrinsic evidence of Mrs Winson’s intentions which might be admitted to assist in the interpretation of her will. Neither counsel sought to invoke the section.

I did not understand there to be any difference between counsel as to the governing legal principles.

Mr Gomer points out that there is little decided authority on the interrelationship between commorientes and survivorship clauses; but he points out that the section of Butterworth’s Wills, Probate & Administration Service which was provided in the course of correspondence by Wilsons solicitors LLP, writing on behalf of certain of the charities, and which is exhibited to the first claimant’s witness statement (at pages 130 to 136 of the hearing bundle) identifies (at paragraph 3.82(4)) this precise situation as a potential “pitfall” and suggests how it may be avoided in will-drafting situations.

Against this legal background, I turn to the parties’ submissions.

For the claimants, Mr Gomer points out that the difficulty in the present case is that the wording of the survivorship clause itself is neither meaningless nor ambiguous. It simply appears to have an unintended effect in the particular circumstances of Mr and Mrs Winson having died more or less simultaneously. The question is therefore not what the survivorship clause means so much as whether it applies to the primary gift in the present case. The point made at paragraph 7 of the first defendant’s witness statement is said to be uncontroversial. It was clearly not the intention that these specific legacies should be paid over twice. However, Mr Gomer submits that this is not what the wills actually say. The key clause is the survivorship clause which states that:

“My estate is to be divided as if any person [and Mr Gomer emphasises the words ‘any person’] who dies within 28 days of my death had predeceased me.”

This is referred to in Butterworths as an ‘omnibus’ survivorship clause as opposed to one which is limited to the spouse or to the other legatees.

Mr Gomer submits that the ordinary and natural meaning of the survivorship clause is that anyone who is named in the will must survive the testator by 28 days in order to take under the will. There is nothing in the clause that excludes the relevant spouse from the ambit of “any person” in this context; and the drafting of the rest of the wills fails to assist in that regard either. The wills state, in terms, that the secondary gifts take effect “if [the primary gift] fails.”

Under the terms of the survivorship clause, the fact that Mrs and Mrs Winson died within 28 days day of each other would mean that the gift failed in each case. There are ways that this infelicity could have been avoided, as suggested in Butterworths; and Mr Gomer points out that it would have been a simple matter to have excluded its effect in respect of the relevant spouse and/or in respect of the primary gift (thus leaving the commorientes rule as the mechanism governing a situation such as the present).

According to Mr Gomer, the defendants’ primary argument appears to be that the term of each will relating to the primary gift is, in essence, entirely separate from the remainder of the will and is therefore unaffected by the survivorship clause. In his oral submissions, Mr Gomer said that Mr Hewitt was arguing that clause 6.3 created a “firewall” such that clauses 7 to 11 of Mrs Winson’s will could be completely ignored because, as Mrs Winson was deemed to have died first, the primary gift in favour of Mr Winson had succeeded. Mr Gomer submits that this argument, whilst ingenious, is incorrect for the following reasons:

For the defendants, Mr Hewitt submits that the survivorship clause contained in clause 11.2 of Mrs Winson’s will does not apply to the gift of residue she made to Mr Winson by clause 6.2 and that that gift therefore takes effect and Mrs Winson’s entire estate (save only for her teddy bear collection and the diamond ring gifted by clause 5) passes to Mr Winson, and now to his estate. Adopting Lord Neuberger’s approach in Marley v Rawlings (cited above), the starting point is to:

“find the intention of [Mrs Winson] ... 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.”

Mr Hewitt addressed each of those elements in turn, starting with the natural and ordinary meaning of the relevant words. The natural and ordinary meaning of the words at clauses 6.2 and 6.3 is said to be that the survivorship clause in clause 11.2 does not apply to the gift made to Mr Winson by clause 6.2. The words at clauses 6.2 and 6.3 are said to make it clear that the remaining provisions of the will, namely clauses 7 to 11 inclusive, only apply if the gift to Mr Winson made by clause 6.2 fails:

“6.2

to pay the residue to my husband John Raymond Winson; but if this gift fails

6.3

to divide the residue in accordance with clauses 6[sic – it should be 7] to 11 hereof.”

Thus, if the gift to Mr Winson made by clause 6.2 took effect (as Mr Hewitt submits has turned out to be the case), then clauses 7 to 11 inclusive (including the survivorship clause in clause 11.2) are simply not engaged at all. In short, Mr Hewitt submits that clause 11.2 is only engaged if the primary gift to Mr Winson has already failed. To construe clause 6.2 otherwise would, according to Mr Hewitt, do violence to the language of clause 6.3.

It is argued that some further support for this can be found in the fact that the word “divide[d]” is used in both clauses 6.3 and 11.2 but not in the gift to Mr Winson made by clause 6.2. This suggests that clauses 6.3 and 11.2 were intended to operate together whereas clauses 11.2 and 6.2 were not.

Secondly, Mr Hewitt addresses the overall purpose of the document. He submits that the overall purpose of Mrs Winson’s will was, in the first instance, to leave her estate to Mr Winson if she died first. There is no evidence that she intended her gift to Mr Winson to be conditional on him surviving her by 28 days. On the contrary, it is said that it seems highly unlikely that she would have had any such intention given that she and her husband had made mirror wills on the same day that benefitted precisely the same beneficiaries on the second death. This is not a case where, for example, any part of the estate of a surviving spouse is to pass to the children of an earlier marriage or relationship. Further, the first defendant says in his evidence that he recalls Mr Winson asking him to confirm that the pecuniary legacies would only be payable once.

Thirdly, Mr Hewitt considers the other provisions of the document. By clause 7.2 of her will, Mrs Winson purported, amongst other things, to make specific gifts of two pictures by Alderson (Desert Orchid and Red Rum) to Mr and Mrs N Dawson and of a painting by Alderson to the first defendant. However, those three items are also specifically gifted to the same donees by clause 6.2 of Mr Winson’s will.

If (as the claimants contend) Mrs Winson’s estate has to be administered in accordance with the provisions of clauses 7 to 11 of her will (because the gift made to her husband by clause 6.2 has failed as a result of the survivorship clause in clause 11.2) and thus clause 7.2 is engaged, then the three specifically identified items gifted in specie by that clause are prima facie given twice, once out of each estate, which is a nonsense. On the other hand, this oddity does not arise if Mrs Winson’s will is construed as the defendants contend because the three specific gifts only take effect out of Mr Winson’s estate (pursuant to clause 6.2 of his will).

Fourthly, Mr Hewitt addresses the facts known or assumed by the parties at the time that the document was executed. The following are said to be of particular relevance here:

Fifthly, and finally, Mr Hewitt invokes commons sense. Ignoring the subjective evidence of Mrs Winson’s intention (in accordance with paragraph 19 of Marley v Rawlings), he submits that it seems more likely than not, as a matter of common sense, that Mrs Winson did not intend that the legacies totalling £214,500 should be paid twice, once out of each estate. Rather, her intention is more likely to have been that if she died first, her estate (save for her teddy bear collection and the diamond rings) should simply pass to her husband no matter how long he survived her, and that the three specific gifts of pictures and the pecuniary legacies should only become payable on his death, with the residue passing to the claimants.

For all of these reasons, Mr Hewitt submits that Mrs Winson intended clauses 6.2, 6.3, and 11.2 to operate so that the survivorship clause in 11.2 did not apply to the gift made to Mr Winson by clause 6.2, and that the relevant clauses should be construed accordingly. Mr Hewitt points out that it is notable that the claimants themselves assert that:

“It was not [Mr and Mrs Winson’s] intentions that there be duplicate payments made to each of the legatees”: see paragraph 14 of the claimants’ first witness statement.

This is said to imply that the claimants are contending for a construction which, on their own case, defeats Mrs Winson’s intention (and, indeed, the claimants have threatened professional negligence proceedings on this basis). Mr Hewitt invites the court to reject the claimants’ contention.

The first claimant indicates that she is advised that “a survivorship clause overrides a commorientes rules”: see paragraph 27 of her first witness statement. Mr Hewitt submits that this is wrong both as a general proposition and in relation to the interplay between clauses 6.2, 6.3, and 11.2 in the present case.

For all of those reasons, and following the approach to construction explained in Marley v Rawlings, Mr Hewitt invites the court to construe the relevant provision of Mrs Winson’s will as contended by the defendants, which it is common ground is the construction which gives effect to Mrs Winson’s intention, and not so as to defeat it (as contended by the claimants). Mr Hewitt therefore asks the court to declare that on its proper construction, the gift made by clause 6.2 of Mrs Winson’s will took effect and was not subject to clause 11.2.

Those were the parties’ submissions to which I have paid due regard.

Ultimately, as with so many questions concerning the interpretation of a will, the issue is a short one. In my judgment, the submissions of Mr Gomer are to be preferred to those of Mr Hewitt attractively though the latter were presented. As Mr Gomer points out, the question is not one as to the meaning of the survivorship clause but rather as to its application. Is it what has been termed an ‘omnibus’ survivorship clause, which applies throughout the will generally, or is its application confined to the secondary gift, which takes effect only if the primary gift to the spouse of the maker of the relevant will fails?

In my judgment, the wording of clause 11.2 of Mrs Winson’s will is clear. The key words are “my estate” and “any person.” The term “my estate” in clause 11.2 bears the same meaning as at the beginning of clause 6. The word “any person” refers to any person named in the will. There is nothing in the will to exclude the relevant spouse from the ambit of the description “any person” or to restrict the application of clause 11.2 to the residue of the estate in the event of the failure of the gift to the primary beneficiary, the husband of the testatrix.

Clause 11.2, in my judgment, provides in clear and unambiguous language for how Mrs Winson’s estate is to be divided if any person named in the will, including any surviving spouse, dies within 28 days of the death of the maker of the will.

I am not influenced in my decision by Mr Gomer’s argument that the defendants’ interpretation is “a somewhat tortured one” inasmuch as it demands that the majority of the will is redlined if the primary gift succeeds because that will almost invariably be so in the case of any substitutionary will provision. Subject to that one qualification, however, I accept Mr Gomer’s submissions, and I adopt them as part of my reasoning. Mr Gomer acknowledges that the secondary gift is stated to be contingent on the primary gift failing and that only then will the estate be divided “in accordance with clause 6 [or in fact 7] to 11 hereof” of Mrs Winson’s will.

Mr Hewitt relies upon the fact that the words of clauses 6.2 and 6.3 make it clear that the remaining provisions of the will (namely clauses 7 to 11 inclusive) only apply if the gift to Mr Winson made by clause 6.2 fails; and he argues that if the gift to Mr Winson made by clause 6.2 took effect (which he says has turned out to be the case), then clauses 7 to 11 inclusive (including the survivorship clause in clause 11.2) are simply not engaged at all. That is because, by clause 6.3, clause 11.2 is only engaged if the primary gift to Mr Winson has already failed. Mr Hewitt submits that some further support for this can be found in the fact that the word “divide” or “divided” is used in both clauses 6.3 and 11.2 but not in the gift to Mr Winson made by clause 6.2. He says that this suggests that clauses 6.3 and 11.2 were intended to operate together whereas clauses 11.2 and 6.2 were not.

Mr Gomer acknowledges that the fact that clause 6.3 (or clause 5.3 in the case of Mr Winson’s will) only applies if the primary gift fails could be said to create the impression that clause 11 (or clause 10 in the case of Mr Winson’s will) is otherwise redundant; but Mr Gomer says that there is nothing in the drafting of the survivorship clause that limits its effect. I accept this argument. There is nothing in any part of either will which expressly states that the ‘omnibus’ survivorship clause does not affect the entire will, including the operation of clause 6.2.

In my judgment, Mr Hewitt’s argument in this respect is circular because it assumes - in my judgment without any justification - that clause 11.2 of Mrs Winson’s will does not apply to the determination of the question whether the gift to Mr Winson has failed. In short, it seems to me to beg the very question which the court has to decide. In deciding whether the primary gift to Mr Winson has failed, I cannot ignore the clear and unambiguous language of clause 11.2. As for the use of the word “divide” this is not inappropriate even if the gift to Mr Winson takes effect given the duties cast upon the executors by clauses 5 and 6.1 of Mrs Winson’s will.

I accept Mr Hewitt’s submission that the overall purpose of Mrs Winson’s will was, in the first instance, to leave her estate to Mr Winson if she predeceased him, and that there is no evidence extrinsic to the will itself that she ever intended her gift to Mr Winson to be conditional on him surviving her by 28 days. However, in my judgment, that intention is sufficiently clearly manifested in the wording of the will itself. The unambiguous wording of clause 11.2 is, in my judgment, too clear to admit of the defendants’ suggested interpretation. I accept Mr Hewitt’s point that his construction would avoid the oddity that the two paintings and the picture gifted by clause 7.2 of Mrs Winson’s will are gifted twice over, once out of each estate. Mr Gomer accepted that this cannot have been within the contemplation of either Mr or Mrs Winson. However, this double gift is of no practical consequence in terms of the administration of either estate since the donees of the gift are identical in both wills (as Mr Hewitt acknowledged). I consider that neither the admissible factual background (or matrix), nor the commons sense invoked by Mr Hewitt, can be permitted to contradict what I consider to be the clear and unrestricted wording of clause 11.2 of Mrs Winson’s will.

I have anxiously considered whether this is a case where there was a clear mistake in not excluding the primary beneficiary from the omnibus survivorship clause (clause 11.2) of Mrs Winson’s will and it is clear what correction ought to be made in order to cure the mistake. In such a situation, the mistake could be corrected by a process of construction in accordance with the observations of Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101 at paragraphs 22 to 25: see generally Hodge on Rectification, 2^nd edition (2016) at paragraphs 2-27 and following. This was not an argument that was advanced before me. However, and with some hesitation, I have concluded that it is insufficiently clear that a mistake was made without resorting to evidence from which an inference is to be drawn as to the subjective intentions of the testatrix, and that such evidence would be admissible only in a claim for rectification and not on a claim (such as the present) which is limited to a consideration of the true interpretation of the will.

I must confess to having originally entertained some surprise that this claim had not been combined with a claim for the rectification of Mrs Winson’s will under the statutory jurisdiction conferred on the court by section 20(1) of the Administration of Justice Act 1982, particularly in the light of counsel’s advice, as recorded in the letter of 23^rd May 2014 (at page 57 of the hearing bundle), that:

“Mabel’s will at law was capable of being rectified upon the basis of clerical error as legally defined.”

Any order for rectification might well have taken the form of inserting the words in parenthesis “(other than my said husband)” after the words “any person” in clause 11.2. Such a claim is not before the court; and the skeleton arguments had not addressed the potential availability of this remedy for that reason. Given the wide meaning accorded to the concept of “clerical error” by the Supreme Court in Marley v Rawlings (previously cited), I had wondered whether such a claim might stand some prospect of success. I had appreciated that the court’s permission to bring such a claim out of time would be required under section 21(2) of the Act; but my provisional view had been that such permission might well be granted, albeit possibly subject to an undertaking from the executrices of the two estates not to seek to disturb the only subsisting double payment, which is to Cancer Research UK.

In the course of oral argument, however, Mr Gomer took me to observations of Lord Neuberger in Marley v Rawlings at paragraph 75 that the concept of “clerical error” does not extend to any activity involving “some special expertise.” He also took me to the judgment of Mrs Justice Asplin on the rectification issue in Reading v Reading (previously cited) at paragraphs 50 to 55. Mr Gomer submitted that the draftsman of the wills had simply used a standard precedent clause in circumstances where this was inappropriate, without any qualification, and that that is not a “clerical error” for the purposes of section 20.

Mr Hewitt pointed out that the defendants may not have the necessary standing to advance a rectification claim; but, in any event, no such claim has been advanced. He did not accept that there had been any error; although if error there was, he would not have necessarily accepted that it had involved the application of some “special expertise” so as to fall outside the concept of a “clerical error”. Mr Hewitt identified the difficulty in the way of a rectification claim as being the absence of any direct evidence of intention on the part of Mrs Winson as to whether the clause 6.2 primary gift to her husband was to be subject to the survivorship clause 11.2 in the circumstances which had arisen.

The reality is that no rectification claim is before the court, and it is not appropriate for me to say any more on that subject (however dear it may be to me). In my judgment, however, for the reasons which I have given, the apparent mistake on the part of the will draftsman in failing to give effect to his clients’ apparent actual intentions can be cured, if at all, only by way of a claim for rectification, if that relief is available, and not by way of construction. I consider that the path down which Mr Hewitt invites the court to tread would involve the court in taking a step too far in re-writing the provisions of Mrs Winson’s will. I therefore construe the will in the way for which the claimants, and not the defendants, contend. That is the end of my judgment.

I have just delivered my extemporary judgment on the substantive construction issue. Inevitably I now have to address the consequent liability for the costs of the construction claim.

For the claimants, Mr Gomer submits that the defendants should bear the claimants’ costs. He submits that this was a claim necessitated by the fact that, on the claimants’ case, which has been accepted in the court’s judgment, a mistake was made in the drafting of Mrs Winson’s will which has led to a result other than the one intended. The claimants were entitled to bring the construction claim. The defendants’ competing interpretation of the will has been rejected, and therefore costs should follow the event.

Mr Gomer has referred me to paragraphs 8 through to 13 of Lord Neuberger’s judgment in Marley v Rawlings (No 2) [2014] UKSC 51, reported at [2015] AC 157. There, the Supreme Court ordered the solicitors to bear the costs of a claim to rectify a negligently drafted will. Mr Gomer expressly adopts what Lord Neuberger had to say at paragraph 10 of his judgment.

For the defendants, Mr Hewitt submits that all parties’ costs should come out of the estate. He acknowledges that there is likely to be a sequel to the instant litigation in which the ultimate incidence of costs should be determined; but he submits that it would be inappropriate, and highly prejudicial, for the court to pre-empt the result of the likely negligence claim against the defendants in relation to the incidence of the costs of this litigation. He has drawn my attention to the relevant pre-action protocol letter dated 12^th December 2014 (at pages 77 and following of the hearing bundle). He has drawn my attention to the fact that there are three heads of claim being advanced there, two of which - an alleged significant delay in the administration of the estate and an alleged failure to disclose items to HMRC resulting in potential penalties and interest - are wholly unrelated to the subject matter of the present construction claim. In any event, and independently of the costs of this litigation, the claimants have threatened litigation in relation to the sums (totalling £214,500) which are, in the light of my judgment, to be paid twice over to the various pecuniary legatees - the named individuals and the charities - contrary to the apparent intentions of Mr and Mrs Winson.

Mr Hewitt submits that the case of Marley v Rawlings is quite distinguishable. He points to the fact that it was a claim for rectification which proceeded on the footing that the draftsman responsible for the preparation of the wills had accepted that he had made an error. Indeed, if there had been no clerical error, the rectification claim would not have got off the ground let alone succeeded. Mr Hewitt drew my specific attention to two passages in Lord Neuberger’s costs decision. The first was in paragraph 9, where Lord Neuberger emphasised that it had been the error of the solicitor which had caused the problem that had given rise to the proceedings, as was reflected by the fact that the insurers had accepted liability for costs in the Court of Appeal and the Supreme Court. The second was in paragraph 10, where Lord Neuberger opined that the solicitor had no defence whatsoever to a damages claim and therefore this was a particularly strong case for holding a third party liable for costs. That is said to be an issue for another day. The question of the ultimate incidence of the costs of these proceedings is said to involve complicated questions as to the extent of the duty owed by a solicitor in circumstances where there is a shortfall of clarity in the drafting of the relevant will.

Mr Hewitt emphasises the factual background to Marley v Rawlings where the error was not in relation to the terms of the will but the basic error of failing to ensure that each testator had signed the will that had been drafted for him or her. Mr Hewitt submits that the present case falls squarely within the first category of case identified by Mr Justice Kekewich in his seminal judgment in Re Buckton [1907] 2 Ch 406 at page 417. There, Mr Justice Kekewich recorded that:

“In a large proportion of the summonses adjourned into court for argument the applicants are trustees of a will or settlement who ask the court to construe the instrument of trust for their guidance and in order to ascertain the interests of the beneficiaries or else ask to have some question determined which has arisen in the administration of the trusts.

In cases of that character, Mr Justice Kekewich regarded the costs of all parties as necessarily incurred for the benefit of the estate and directed them to be taxed as between solicitor and client and paid out of the estate.

I did not find it necessary to call upon Mr Gomer to respond to Mr Hewitt’s submissions. In my judgment this is a very different case from that being considered by Mr Justice Kekewich in the passage from Re Buckton which I have just cited. This is not a case in which this Part 8 claim has been brought for the benefit of the estate. The first defendant is a former executor of the estate who is no longer charged with its administration. The second defendant is the solicitor’s practice that had employed him at the time he drafted this will. The claim has been defended, not in the interests of the pecuniary legatees, who stood to receive and, on my judgment, have been held to be entitled to, double payment, but rather for the benefit of the claimants themselves, even though they have chosen to disclaim that benefit (for the reasons advanced by Mr Gomer and which I recorded in my substantive extemporary judgment).

I am entirely satisfied that in this case the defence has been conducted, through Mr Hewitt, perfectly properly but for the benefit of the defendants themselves (or their professional indemnity insurers). The construction issue has been defended, not for the benefit of the estate, but for the benefit of the solicitors. They have lost; and, in my judgment, costs should follow the event. So I will order the defendants to pay the costs of this Part 8 claim. That is entirely separate from the outcome of any related professional liability claim. The fact is that the defendants could have conceded the construction for which the claimants have contended. They did not do so. They did not do so because it served their own interests, or those of their insurers, and they must bear the consequential costs.