An elderly couple who, without taking legal advice, tied up almost half of their net assets in a discretionary trust which, due to a drafting error, did not reflect their true wishes or offer them the flexibility that they required in their retirement had to go the High Court in order to have the document rectified.
Sydney and Pauline Lawie were aged 81 and 76 when, in March 2006, on the advice of a financial planner, they invested £100,000 in a bond and signed a deed of trust which named their two grandchildren as sole beneficiaries. Under the terms of the deed, the couple lost any entitlement to benefit from the money and there was no scope for any further beneficiaries to be added or for variation of entitlements.
The subsequent death of one of the settlors, Mrs Lawie, meant that the sole means of rectifying the terms of the trust deed was to make an application to the High Court. Judge Colin Birss QC granted the application and effectively re-wrote the deed so that the couple’s children will now be potential beneficiaries and the trustees will have power to vary entitlements between all the beneficiaries.
The judge said that the trustees were unanimous in their evidence that the terms of the deed had not reflected Mr and Mrs Lawie’s wishes to maintain flexibility and to benefit both their grandchildren and their children. Whilst acknowledging that the grandchildren are likely to receive less from the trust as a result of his decision, the judge said that it was clear that the deed contained ‘a simple drafting mistake’. The part of the document in which the children’s names should have appeared had been left blank, ‘plainly in error’.