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Re Harte: the intention based approach to Will interpretation and rectification

17 September 2015

In the wake of the Supreme Court’s judgment in Marley v Rawlings [2014] UKSC 2 many practitioners predicted that the decision could open the floodgates to further Will rectification proceedings.

Marley was a landmark decision in which the court approached the interpretation of Wills in the same way in which they approach the interpretation of commercial contracts: the aim being to identify the intention of the testator.

The decision also widened the definition of “clerical error” under the Administration of Justice Act 1982 meaning that practitioners may now be able to rectify certain Wills where they previously would not have been able to do so.

The case of Re Harte presented the court with another opportunity to affirm its approach to Will interpretation and to re-examine the concept of “clerical error” under the Administration of Justice Act 1982 in relation to rectification claims.


The case related to the interpretation of the terms of the Will of Florence Rosemary Harte (“Mrs Harte”). The terms of Mrs Harte’s Will provided that her estate in its entirety should be left to a number of named residuary beneficiaries which included five charities.

Whilst there was a tolerable level of clarity in Mrs Harte’s overall intention, the Will was poorly drafted. As such the executors felt unable to make any distribution under the Will without a court order. The executors therefore sought an order from the court as to the true interpretation of Mrs Harte’s last Will or, alternatively, rectification of certain provisions of that Will.

The Court’s powers to interpret a Will

The court’s powers to interpret a Will are set out in the Administration of Justice Act 1982. Section 21 of that Act provides that extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist the court in its interpretation of a Will in the following circumstances:

  • Where any part of the Will is meaningless
  • Where the language used in any part of the Will is ambiguous on its face
  • Where evidence, other than evidence of the testator’s intention, shows that the language used in any part of the Will is ambiguous in the light of the surrounding circumstances

The Court’s powers to rectify a Will

Section 20 of the Administration of Justice Act further provides that if a court is satisfied that a Will fails to carry out the testator’s intentions as the result of a “clerical error” or the failure of the Will draftsman to understand his instructions then a court can order that the Will should be rectified.

In Marley, Lord Neuberger stated that if, as a result of a slip of the pen or mis-typing, a solicitor inserted the wrong word, figure or name into the clause of a Will, and it was clear what the testator had really intended, that would undoubtedly be a clerical error which could be rectified by the court.

The case widened the meaning of the term “clerical error” from mistakes limited to copying or writing out a document to include mistakes arising out of office work of a relatively routine nature such as preparing, filing, sending or organising the execution of a document.

The Court’s decision in Re Harte

The principal issues before the court in the case of Re Harte were:

  1. Whether one “part” of Mrs Harte’s residuary estate was equal to one tenth. Mrs Harte’s will was drafted in such a way that the two terms were used interchangeably
  2. Whether Newbury Hospital was a reference to the West Berkshire Community Hospital
  3. Whether the legacies to three of the five charitable beneficiaries should be distributed according to the correct charity numbers, despite the charities being incorrectly named
  4. Whether “West Berkshire Ambulance Hospital” referred to the Thames Valley and Chiltern Air Ambulance Trust, which is a registered charity

Before addressing these issues the court had to determine whether it was permitted to adduce extrinsic evidence, including evidence of Mrs Harte’s intention.

The court was satisfied that the conditions in section 21 Administration of Justice Act 1982 were engaged and as such the court could have regard to the notes that were made by the Will draftsman and the instructions that were presented to him by Mr and/or Mrs Harte.

The Court was satisfied in each of the above cases that the intention of Mrs Harte was sufficiently clear to allow rectification of the various incorrect or inaccurate provisions of the Will. In the context of a “part” it was clear in the Court’s view that this must mean “a tenth” and these could be the same thing (as otherwise the Will would not make sense).

In the case of gifts to charities which had been wrongly named or did not exist, the Court was able to use the notes of the will draftsman to gain clarity about the correct entity to receive the legacy, and was prepared to rectify the Will on this basis.

In particular, the use of charity numbers in the Will enabled the Court to give clarity about the correct entity, which was done by references to the numbers given rather than the (incorrect) names.


The case of Re Harte demonstrates that in general, the Courts will seek to uphold the testator’s wishes in a Will in so far as it is possible to do so.

If there is evidence to demonstrate that, due to a clerical error, the Will executed by the testator does not reflect his original intentions, then there is clear authority in both Marley v Rawlings and in Re Harte that rectification might be possible to remedy the defect.

The approach taken by the court in Re Harte will be encouraging to charity beneficiaries who find themselves in the same position as the charities in Re Harte whereby their gifts may have otherwise been defeated for want of uncertainty.

It seems in the wake of the decision in Re Harte that the courts may continue to re-define new boundaries for the definition of “clerical error” and adopt a more intention-based approach to Will interpretation and rectification than previously.

This shift to an ‘intention based’ approach to the interpretation and rectification of Wills means that not only accurately recording the Will instructions, but also the rationale behind those instructions will be of the utmost importance.