A Practical Guide to the Construction and Rectification of Wills and Trust Instruments – Second Edition

Private client practitioners dealing with estates and trusts routinely encounter drafting problems. These can be of many different types, from an ambiguous clause in a home-made will to a precedent clause included by mistake in a professionally prepared trust deed. They can also arise in very different contexts: while some can be resolved by agreement, others will result in a full-blown court battle, possibly accompanied by professional negligence proceedings against the draftsman. This book is designed as a practical guide to overcoming drafting problems. As well as considering the court’s modern approach to the construction and rectification of both wills and trust instruments, it includes practical guidance on how to try to deal with drafting problems by agreement and, if that fails, on how to ask the court to resolve them. This new edition has been fully revised and updated to take account of recent developments in case law and procedure, including the completely rewritten Chancery Guide. ABOUT THE AUTHOR Edward Hewitt is a barrister at 5 Stone Buildings in Lincoln’s Inn. He has a private client practice with a particular emphasis on inheritance and trust disputes. He is frequently asked to advise on the correct construction of wills and trust instruments. He has also acted in some of the leading recent cases involving the construction and rectification of wills and trust instruments, some of which have included ancillary professional negligence proceedings against the relevant draftsman. CONTENTS Chapter One – Introduction 1.1 The problem 1.2 Structure of this book: distinction between wills and other trust instruments 1.3 A bit of history 1.4 Relationship between construction and rectification 1.5 Miscellaneous Chapter Two – Construction of Wills 2.1 The law 2.2 Practice and procedure 2.2.1 Who is affected? 2.2.2 Can the problem be resolved by agreement? 2.2.3 Professional negligence 2.2.4 Court intervention: section 48 of the Administration of Justice Act 1985 2.2.5 Court intervention: construction claims in the Chancery Division Chapter Three – Rectification of Wills 3.1 The law 3.2 Practice and procedure 3.2.1 Who is affected? 3.2.2 Can the problem be resolved by agreement? 3.2.3 Professional negligence 3.2.4 Court intervention: rule 55 of the Non-Contentious Probate Rules 1987 3.2.5 Court intervention: rectification claims in the Chancery Division Chapter Four – Construction of Other Trust Instruments 4.1 The law 4.2 Practice and procedure 4.2.1 Who is affected? 4.2.2 Can the problem be resolved by agreement? 4.2.3 Professional negligence 4.2.4 Court intervention: section 48 of the Administration of Justice Act 1985 4.2.5 Court intervention: construction claims in the Chancery Division Chapter Five – Rectification of Other Trust Instruments 5.1 The law 5.2 Practice and procedure 5.2.1 Who is affected? 5.2.2 Can the problem be resolved by agreement? 5.2.3 Professional negligence 5.2.4 Court intervention: rectification claims in the Chancery Division Chapter Six – Mistake and Hastings-Bass 6.1 Mistake 6.2 Hastings-Bass