High Court Rules on Rectification of Will and Non-Party Costs Order in Pead v Prostate Cancer UK & Ors

Citation: [2023] EWHC 3224 (Ch)
Judgment on

Introduction

In the case of Steven Leslie Pead v Prostate Cancer UK & Ors [2023] EWHC 3224 (Ch), the High Court adjudicated on a matter involving the rectification of a will and the subsequent legal costs associated with the claim. The judgment provides valuable insights into the principles governing the drafting of wills, the rectification process, and the discretion courts hold in awarding costs against non-parties. This article analyzes the key topics and legal principles addressed in the judgment, with a particular focus on the duties of solicitors in drafting wills and the application of non-party costs orders.

Key Facts

The claimant, Steven Leslie Pead, sought rectification of the last will and testament of his late step-father, James Murray McKay, or alternatively, a declaration on the true construction of a clause in the will concerning the distribution of the deceased’s estate. The will was initially drafted by BBMW Limited, which later merged with GCWA Solicitors, with GWCA being the successor practice.

Rectification failed while construction succeeded to some extent, leading the claimant to apply for a non-party costs order against GWCA. An agreement on costs was made between some parties, but the key contest was whether GWCA should bear the costs of the rectification claim, along with the construction claim.

Rectification and Construction of Wills

The case delved into the rectification of wills under English law, acknowledging the need for clear evidence of the testator’s intentions and the proper recording of these intentions in the will. It also addressed the construction of ambiguous will clauses, citing section 21 of the Administration of Justice Act 1982, which permits extrinsic evidence regarding the testator’s intent.

Non-party Costs Orders

Central to this case was the application of non-party costs orders under section 51 of the Senior Courts Act 1981. The judgment reaffirmed that such orders are ‘“exceptional’”, not in the sense of rarity but in their departure from the ‘ordinary run of cases’. The court emphasized justice and fairness in considering whether a non-party should be bound by the trial’s evidence and findings, as underscored in Deutsche Bank AG v Sebastian Holdings Inc [2016] EWCA Civ 23.

Solicitor’s Duty and Conduct

The judgment touched on the obligations of solicitors in drafting wills, highlighting the repercussions of drafting errors and omissions. It also considered the duty to confirm and clarify a testator’s intentions, as seen in Marley v Rawlings (No 2) [2014] UKSC 51; [2015] AC 157 where the Supreme Court made a costs order against a solicitor for a mistake that led to a dispute over the will.

Apportionment of Costs

Apportionment of costs was another legal principle examined, with the court undertaking a ‘broad brush’ approach in determining the extent to which GWCA should bear the expenses. The court must assess which costs pertain to each issue and those common to several issues.

Outcomes

The court ordered GWCA’s insurers to pay 60% of all parties’ costs of the total claim. This decision was influenced by GWCA’s admitted responsibility for costs related to the construction dispute and the acknowledgment that BBMW failed to ensure the deceased’s instructions about the disposition of his residual estate was properly clarified.

Conclusion

Master Teverson’s judgment in Pead v Prostate Cancer UK & Ors provides a judicious application of legal principles related to the rectification and construction of wills, the duties of solicitors in their drafting, and the conditions under which non-party costs orders can be made. This case underlines the necessity for meticulous practice by solicitors in will drafting, as even inadvertent omissions can lead to significant legal disputes and financial consequences. The judgment also solidifies the notion that while non-party costs orders are exceptional, they remain a crucial tool for achieving fairness and justice when a dispute is substantially caused by the conduct of someone not originally party to the proceedings.

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