A client recently contacted me to say that her mother needed a power of attorney. After asking some questions it became clear that it would not be possible for a power of attorney to be prepared on this occasion because mother had advanced dementia so was...
Will drafting is an exact science, requiring years of professional training, and a single mischosen or out-of-place word can have very serious consequences. Exactly that happened in a High Court case concerning the mistaken use of the word 'both' – rather than 'each' – in a millionaire businessman's will.
The businessman, whose estate was worth £6.4 million, was the main shareholder in a company in which his wife and a close friend and colleague – the beneficiaries – held minority stakes. By his will, he conferred power on his executors to allocate part of his shareholding to the beneficiaries so that 'both' of their shareholdings would amount to 26 per cent of the company's issued share capital.
Following his death, an issue arose as to whether, on a true reading of the will, the executors were able to assign to the beneficiaries the number of shares required to bring each of their shareholdings up to 26 per cent of the total, or only so many shares as would bring their combined shareholdings to 26 per cent. Although that issue hinged on the interpretation of a single word, it was highly significant in money terms and had financial implications for a charity that was also a beneficiary of the will.
Ruling on the case, the Court found that the word 'both', as employed in the will, was ambiguous, both on its face and in the light of the surrounding circumstances. Viewed in context, the evidence established beyond doubt that the businessman's intention was that each of the beneficiaries should have 26 per cent of the company.
The Court found that the use of the word 'both', rather than 'each', was a perfect clerical mistake, arising from a secretarial mistranscription. Given the Court's interpretation of the will, however, it was unnecessary to engage the power of rectification to amend the document's wording.