Avoiding a ‘Harte’ Attack


Thankfully, during the usual course of working on probate matters, the number of times a deceased’s will causes difficulties to an estate’s administration are few and far between. However, one matter I found myself dealing with this year very much brought home the message of how critical it is to make sure a will is clearly and properly drafted (and the potential scale of the problems which can result when it is not).

The case in question was reported as Re: Harte [2015] EWHC 2351 (Ch).

The will in question belonged to a Mrs Florence Harte, who had prepared mirror wills with her husband Mr Harte, who pre-deceased her. The frustrating factor of the matter was that her will was not particularly complicated. It did not include any complex trust arrangements or the like; it simply sought to leave her estate to her husband should he survive her (which he did not) or divide it between a combination of friends and charities if he did not.

Unfortunately, the will was badly drafted and littered with problems:

The nature of the parties involved (in particular the beneficiary who pre-deceased Mrs Harte) meant that the only safe way for the executors to distribute the assets contained within the estate of Mrs Harte was to seek an order from the High Court for rectification/construction of the will, to ensure it accorded with the deceased’s intentions.

Such application permitted the consideration of extrinsic evidence, including; all available evidence relating to the preparation of the will, notes from the file of the solicitors who prepared the will and contacting the attesting witnesses. The only assistance came from the will file, which contained a reference to ‘air rescue [illegible] West Berks’ in a note prepared by either Mr or Mrs Harte (which was interpreted as relating to the gift being made to the ‘ambulance hospital, as there was nothing else in the will to which it could otherwise reasonably relate).

We therefore had to interpret the will based upon assumptions made from the document itself, and present our best interpretation of Mrs Harte’s intentions when making it to the Court for approval. In the case of the individual who pre-deceased Mrs Harte, this resulted in a share of the estate being dealt with by way of partial intestacy, which in itself required tracing agents to locate eighteen new beneficiaries to that one share of the estate.

After nearly ten months of complying with various directions made by the Court, it was able to resolve the various problems with the will by way of both interpretation and rectification. It relied partly on the finding in Marley v Rawlings that the word ‘clerical error’ has a broad meaning.  The costs of the proceedings were eventually ordered against the solicitors who prepared the will and whose drafting resulted in the need for the application.

Ultimately, Mr and Mrs Harte cannot be criticised for any of this sorry tale, as they placed their trust in professionals to prepare their wills. There was therefore little to nothing they could do to prevent the problems which unfolded, as they validly assumed all was well with their wills. The message is clear – it is critical that the terms of a will are properly and competently set out, regardless of who is responsible for drafting it. Fortunately the losses to the estate in this case were fairly minimal and it was possible to ensure that the charities received their entitlement. Had Mrs Harte drafted her own will for example, the consequences would obviously have been far worse.

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