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What Countess Bathurst’s battle with stepson teaches us

The widow of the 8th Earl Bathurst's High Court battle over access to her late husband's stately home shines light on how wills can be rectified, writes John Melville-Smith

In a story worthy of a P G Wodehouse novel, it is reported that the Dowager Countess Bathurst, widow of the 8th Earl Bathurst (aka Henry ‘Barmy’ Bathurst), is embroiled in a High Court dispute with her stepson, the 9th Earl, over the terms of the late 8th Earl’s will.

Judgement has been reserved until December, thus the full facts are not known but from what can be gleaned from press reports, the Countess was refused permission by the trustees of her late husband’s estate, and the current Earl, to enter the family’s stately home at Cirencester Park (from which she decamped to a farmhouse on the estate when the 9th Earl moved in) for the purposes of making an inventory of the contents pursuant to an entitlement to their ‘use and enjoyment’ under the 8th Earl’s will. The family heirlooms have an estimated value of £13 million, including paintings and antique furniture.

Her counsel, Fenner Moeran QC, told the High Court that the relationship between stepmother and stepson is 'not cordial.' Problems appear to stem from the 8th Earl having divorced the 9th Earl’s mother, and married the Countess, whose request to inspect the heirlooms was a 'flimsy pretext' to gain entry to the house, where she knew she was not welcome, according to the trustees.

The question before the court therefore appears to be whether the 8th Earl’s will, granting the Countess the ‘use and enjoyment’ of heirlooms, confers a right to visit the stately home and inspect them all. Whether this is a case of the court interpreting an ambiguous provision or directing what steps should be taken in furtherance of it is unclear. The law, however – which historically took a strict approach to the construction of wills such that a testator’s wishes were not always implemented - is becoming more pragmatic in its desire to give effect to those wishes.

Since the Administration of Justice Act 1982, the courts have had statutory powers to rectify wills. Section 20 provides that if a will 'is so expressed that it fails to carry out the testator’s intentions, in consequence…of a clerical error' the court may order that the will be rectified. Further, section 21 states that if a will is meaningless or ambiguous, extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation.

These provisions were interpreted restrictively until the 2014 Supreme Court decision in Marley v Rawlings, in which a husband and wife executed each other’s will in an error which came to light only following the second (husband’s) death. The Supreme Court said that the wills should be interpreted, as a contract, as if signed by the correct people. This had been a 'clerical error' and the 1982 Act was engaged. There was 'certainty as to what Mr Rawlings wanted…he would have signed the will prepared for him if he had appreciated the mistake.'

The principle has been widely applied in subsequent cases, even (in Brooke v Purton) where the negligent drafting, by a solicitor, of a clause setting up a discretionary trust ensured that the entire estate was subject to tax. Applying Marley v Rawlings, the court said that the issue was the deceased’s intentions, found by identifying the meaning of the relevant words in the light of, among other things, the natural and ordinary meaning of those words,  the overall purpose of the document and common sense. A literal reading of the will could not plausibly represent the deceased's intentions as it would preclude the inclusion of any assets in the trust. This was a 'clerical error' within the meaning of section 20 of the Act. It was, therefore, appropriate to rectify the will to reflect the testator's intentions.

John Melville-Smith is an associate at Seddons