Eade v Hogg and Ors  EWHC 1057 (Ch)
04 May 2021
Alexander Learmonth QC and James McKean succeed in having a will rectified following a contested trial, despite the evidence of the solicitor who drafted it that it correctly reflected the testator’s wishes.
Re Nodes decd; Eade v Hogg  EWHC 1057 (Ch) pushes the boundaries of statutory rectification of wills, and contains damning criticism of the solicitor who failed to make proper attendance notes when taking instructions from an elderly testator making changes to his will.
Michael Nodes owned 91% of the shares in a valuable company, formerly his family undertakers. His previous will left 26% of it to his wife (represented by James McKean, instructed by Druces), and 26% of it to the claimant, his friend and colleague Don Eade (represented by Alexander Learmonth QC, instructed by Hart Brown). When the will was updated in 2015, it was changed so that it gave the executors power to appoint to his wife and Mr Eade so many shares in the company as would when added to the existing shareholdings of both of them amount to 26%, suggesting a major change from 26% each to 26% between them, and introducing a discretion in the executors which had not been there before. The solicitor was adamant that this was what Mr Nodes had expressly instructed, despite there being no contemporaneous record of such instructions, despite Mrs Nodes – who was present at all appointments – being equally adamant that he had not intended any such change, despite various statements made by Mr and Mrs Nodes at the time confirming that Mr Eade would receive the full 26%, and despite expert handwriting evidence from Ellen Radley confirming that, as the will was originally drafted in manuscript, the solicitor had written “each”, which had been wrongly transcribed as “both”.
The case was particularly remarkable because the solicitor had actually told Mr Eade he would have 26% shortly after Mr Nodes’ death, and obtained a valuation of a proportionate shareholding of the company for tax purposes, before seemingly changing his mind about what Mr Nodes had wanted.
Followin sustained cross-examination, the Court rejected the evidence of the solicitor, described in the judgement as "evasive, equivocal and frankly unsatisactory" and who "did not give impartial evidence to assist the court", but "advocated his postion". The court held that the use of the word "both" was capable of being interpreted as "each", in the light of the extrinsic evidence of Mr Nodes' intentions admissible under s.21 of the Administration of Justice Act 1982, but would alternatively be rectifiable to "each" as a clerical error. The discretionary power of appointment was found to have been introduced without instructions, and amounted to a failure by the solicitor to understand his instructions under s.21 (1)(b) of the 1982 Act.
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