If you wish to change to your will, it is always advisable to do so promptly rather than leaving it until later. This was amply demonstrated by a recent case in which the High Court was called upon to determine various issues in relation to a codicil a woman had made shortly before her death, including whether it accurately reflected her wishes and what certain clauses of it meant.
The woman had made a will in 1985. When she executed the codicil on 18 December 2018, she was gravely ill and was not expected to live until Christmas. She died three days later. After a rectification claim was brought, the Court had to consider a number of issues concerning the codicil. It heard from several witnesses, including her husband, her son from a previous marriage and the solicitor who had drafted the codicil.
One area of contention was whether the woman had intended to give her husband a life interest in the house where they had lived or a right of residence, and whether she had intended to give him the power to sell it. The Court considered that the solicitor’s attendance note, which stated that the woman had expressly referred to a life interest trust in favour of her husband, was powerful evidence that she had intended to give him a life interest in the property. The claim to rectify the codicil to change the life interest into a right of residence therefore failed. However, the Court found that the insertion of a power of sale into the codicil had been a clerical error. There was evidence that the woman had wished the house to pass to her son after her husband’s death. Accordingly, the Court ordered that the codicil be rectified by deleting the relevant words.
Another issue was what was meant by a reference in the codicil to a yard. After examining plans of the land and considering the wording of the relevant clause, which referred to the house and its grounds including the yard, the Court concluded that it referred to land that formed part of the grounds of the house, rather than land used for farming.
The Court was also asked to rectify the will by deleting a clause that left the woman’s personal chattels to her husband, on the grounds that this conflicted with the codicil. It was argued that she had wanted the residue of her estate, including personal chattels, to pass to her husband and her son. However, the solicitor gave evidence that the woman had not wanted her personal chattels to fall into the residue of her estate, and the Court observed that the attendance note was consistent with the relevant clause of the will standing. In the Court’s judgment, the case for rectification was not made out.