The Common Law Principle Of Common Mistake

The case of British Red Cross v Werry (Ch) Unreported related to the setting aside of a consent order based on the contractual principle of common mistake.

British Red Cross v Werry


Mr Harding and Ms Deeley were partners for almost 30 years, but never married.

Mr Harding died in 2008 and it was believed that Mr Harding died without a Will (intestate) so a distant relative took out letters of administration. On intestacy his estate would have divided between his 16 relatives.

Ms Deeley, having received nothing, brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 as a cohabitee.

An agreement was reached whereby she received a life interest in the home they had shared, as well as a trust for repairs.

Ms Deeley died in 2014, leaving the entirety of her estate to five charities.

It transpired that Mr Harding had made a Will after all. The Will left the property to Ms Deeley outright.

The charities applied for permission to appeal the original order out of time and for it to be set aside on the basis of a common mistake.

The Role of the Court

It was for the Court to decide whether the Order (resulting from the Settlement Agreement) could be set aside after all the time which had passed.

It was held that the mistake, which was the belief Mr Harding had died intestate, was fundamental to the legal issue in this matter.

The Court declared that the Order (and the Settlement Agreement) was void for common mistake and the proceeds of the sale of the property were distributed in accordance with Ms Deeley’s Will.


This is an interesting case given that the doctrine of common mistake is not so common in practice. In the context of contested probate, it demonstrates the Court’s approach to the importance of a valid Will, even where this is found some years after an agreement based on no Will existing. It also demonstrates the importance of a testator notifying next of kin about the whereabouts of a Will.

British Red Cross Werry

How can Nelsons help?

Kiren Cox is an Associate in our Dispute Resolution team, specialising in inheritance disputes.

If you have any questions regarding the subjects discussed in this article, please contact Kiren or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.

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