Neutral Citation Number: [2009] EWHC (Ch) 1953
Case No: HC08C03358
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/07/2009

Before :

MR JUSTICE NORRIS
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Between :

	Justin Parkinson	Claimant	
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	Edith Vera Fawdon	Defendant	

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Paul Emerson (instructed by Bunkers) for the Claimant
Anna Clarke (instructed by Chivers Eastern Brown) for the Defendant

Hearing date: 28 July 2009
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Judgment

Mr Justice Norris : 

1.	William Hindle (“Mr Hindle”) shared Tregajorran Farm, Redruth, Cornwall with Leslie Charles Fawdon (“the Deceased”). On the 20th November 1996 Mr Hindle and the Deceased made mirror wills. Each left his estate to the other, appointing him sole executor: but in the event that the other did not survive the testator, then there was an appointment of alternative executors and a division of the residuary estate.
2.	William Hindle died on the 14 April 2007. Under his will his estate passed to the Deceased. The substitutionary provisions did not take effect. Under those provisions Mr Hindle had appointed “my nephew Mark Parkinson of 215 Ditching Road Brighton in the County of Sussex” together with the defendant Edith Vera Fawdon to be his executors and trustees; and he had divided his estate in half, one half going to “my said nephew Mark Parkinson” and the other being divisible between Edith Fawdon, Joyce Bell and Joan Barnes (who were the Deceased’s i.e. Leslie Fawdon’s sisters).
3.	The Deceased died on the 25 April 2007. As he was the survivor of himself and Mr Hindle the substitutionary provisions in his will did take effect, and in relation to the combined estates. The Deceased appointed the Defendant and “Mark Parkinson of 215 Ditching Road Brighton in the County of Sussex” to be his executors. After constituting a trust for sale and providing for the payment of debts the Deceased directed that his residuary estate be divided in half, one half being held for “the said Mark Parkinson”, and the other for such of Edith Fawdon and her sisters as should have survived the Deceased. Both Joyce and Joan had died in 1997 so that Edith Fawdon alone took this share.
4.	There is no one who matches the description of “Mark Parkinson of 215 Ditching Road Brighton”. The Claimant Justin Parkinson says that the intended reference was to him. On 26 November 2008 he commenced proceedings for the rectification of the Deceased’s will by replacing “Mark Parkinson” with “Justin Parkinson”. The trial of the action is set down for hearing. 
5.	But before it can be decided (in accordance with section 20 of the Administration of Justice Act 1982) that the will does not, by reason of a clerical error or a failure to understand testator’s instructions, carry out the testator’s intentions it must first be decided what the document he executed actually means. The Defendant Edith Fawdon therefore counterclaimed in the proceedings that the Court may determine, upon the proper construction of the will and the events which have happened, whether the Claimant Justin Parkinson or another is the person referred to as “Mark Parkinson” in the will: and for a grant to issue accordingly. The estate is modest, the essential facts are not in dispute, and the question clearly identified. I directed that the Counterclaim be listed for determination on written evidence without a hearing, but recognising that the judge so considering the Counterclaim might think that the only wise course was to adjourn it to the trial.
6.	In this way the matter comes before me with an agreed statement of facts, supplemented by witness statements on the Claimant’s and on the Defendant’s side, and a clear skeleton argument in support of the relief sought in a Counterclaim (which is not opposed by the Claimant). I do not consider that a hearing is necessary.
7.	This is a probate action.
“In exercising its jurisdiction to make grants of probate…. the main functions of the court (whether as the Chancery Division or the Family Division) are to ascertain and determine what testamentary paper or papers are to be regarded as the deceased’s last will, and who is entitled to be constituted as his or her representatives. Save in so far as is necessary in order to fulfil those functions, the court is not required to construe the relevant documents…..”
See Williams Mortimer & Sunnucks “Executors Administrators and Probate” 19th edition paragraph 1 – 17. It is necessary to construe the Deceased’s will to identify the parties entitled to take a grant.
8.	In Re Resch’s Will Trusts [1969] 1 AC 514 (considered in Lamothe [2006] EWHC (Ch) 1387) Lord Wilberforce, giving the advice of the Privy Council on a matter concerning cumulative gifts in successive testamentary documents, drew attention to the breadth of evidence that is admissible in a court of probate, saying (at p.547C):-
“The principles which ought to be applied on such a question is this, by a court of construction, as compared with those applicable by a court of probate have been clearly stated by Sir John Nicholl. “In the court of probate the whole question is one of intention: the animus testandi and the animus revocandi are completely open to investigation”… and “in a court of construction, where the factum of the instrument has been previously established in the court of probate, the enquiry is pretty closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator”: Greenough v Martin (1824) 2 Add 239 at 243”.
It is plain that I can at the least take into account as an aid to construction (a) all the persons and facts known to the Deceased at the time when he made his will; and (b) any document which is substantially contemporaneous with the will and is of an important character and which shows who the testator had in mind and intended by the misdescription.  

9.	No one answering the description of “Mark Parkinson” lived at 215 Ditching Road Brighton either in November 1996 or in April 2007. Indeed the reference to “Ditching Road” is itself a mistake for “Ditchling Road”. 
10.	In using that description on 28 November 1996 the Deceased plainly intended to refer to a then living person known to him: Re Ofner [1909] 1 Ch 60 at 63. Equally plainly, that person was the same as the person to whom Mr Hindle referred in the mirror will made on the same occasion by the same solicitors as “my nephew Mark Parkinson”. The persons living at 215 Ditchling Road in November 1996 were Mr Hindle’s niece Linda, her husband Alan and their children (Mr  Hindle’s great-nephew Justin and his great-niece Kirsty). The intended reference was clearly to a male member of Mr Hindle’s family. It would be unusual (save with in a very close family relationship) to refer to the husband of a niece as a “nephew”; but it would not be unusual to refer to a great-nephew as a “nephew”. There are no other members of Mr Hindle’s family with the forename “Mark” or the surname “Parkinson” or who satisfy the description of living at 215 Ditchling Road. There are no members of the Deceased’s family who fit any aspect of the description.
11.	On this evidence I find and hold that the reference to Mark Parkinson is a misdescription of Justin Parkinson, whom the deceased intended to appoint as executor and to receive the share in his residuary estate.
12.	The Deceased’s will is otherwise regular on its face and apparently duly executed (there being an attestation clause in familiar form). Although the employees of the solicitors firm who witnessed the signature of the Deceased cannot be traced I shall presume the formal validity of the Deceased’s will. It is rational in form and I shall also presume its substantial validity.
13.	In these circumstances I shall grant the order sought on the counterclaim, declaring that the person named as “Mark Parkinson” is the claimant, pronouncing for the force of validity of the Deceased’s will dated 28 November 1996, directing that probate be granted to the Claimant and to the Defendant and that any subsisting caveat should cease to have effect. I will make no order on claim (and will vacate the trial). I will make the order for costs upon which Counsel are agreed and which is set out in the draft order. 

Mr Justice Norris…………………………………………………… 28 July 2009