A fundamental drafting error in a conveyance, which resulted in a son being given a beneficial interest in his elderly mother’s home, contrary to her intentions, has been rectified by the Court of Appeal. Due to the error, the man had become sole legal and beneficial owner of the property by survivorship on his mother’s death and his two brothers had effectively been disinherited.
The conveyance had recorded the mother’s gift to her son ‘in consideration of natural love and affection’. It had the effect of making mother and son beneficial joint owners of the property, whereas her intention had been to put the property in their joint names so that he could raise a loan using it as security. She had not wished to part with any part of her beneficial interest in the property.
When the matter first came to court the judge had expressed ‘unease’ about the case but nevertheless refused to rectify the conveyance on the basis that it had been professionally prepared pursuant to a general power of attorney and that the drafter had been acting within the scope of his authority. Allowing the brothers’ appeal against that decision, the Court of Appeal noted that the mother had specified in her will, which was made shortly before she died, that her home should be sold on her death and the proceeds split equally between her three sons. At the time she executed the will, she had clearly believed that she remained the beneficial owner of the whole property.
The Court of Appeal ruled that the conveyance should be rectified to the effect that the property was held by the mother and her son on trust for the mother absolutely. Lord Justice Elias concluded, “Ultimately it matters not why the conveyance failed to reflect the intentions of the settlor; it is enough that it did not in fact do so … or whatever reason there was a fundamental mistake in the drafting of the conveyance and it gave the son a benefit which it would be unconscionable for him to keep.”