Can a will be rectified after a testator’s death?

Under section 20 of the Administration of Justice Act 1982 (“the 1982 Act”), Courts have the power to rectify a will, following a testator’s death, if there is evidence that the will fails to carry out the testator’s intentions, because of a clerical error or a failure to understand the testator’s instructions.

An application for an order to rectify a will cannot, without permission of the Court, be made after 6 months of the date of the Grant of Probate.

In the case of Kelly v Brennan [2020] EWHC 245 (Ch) the Court considered whether to allow a claim for the rectification of a will which had been made 2 years and 11 months out of time. The court also had to consider where the testator was domiciled to determine which law was applicable.

Background

These proceedings concerned the estate of Mr Patrick Joseph Kelly. Mr Kelly was born in the Republic of Ireland. He was one of 9 children and moved to England in the early 1970s. He never married and had no children. Although he would occasionally visit his family in Ireland, the evidence was that he did not intend to return to live there.  Despite this, on 5 July 2010, Mr Kelly instructed a firm based in Ireland, R A Osborne & Son (RAO), to prepare a will on his behalf.

The solicitor’s handwritten note of the meeting records that his estate was to be divided into 6 equal shares between 5 of his surviving siblings and the 5 adult children of a further sister who had pre-deceased him. However, the will was drafted incorrectly. Under the will, his Estate was to be left to the same beneficiaries, but split into 10 equal shares. As a result of this error, the 5 surviving siblings would each receive over £100,000 less from the estate.

A claim was therefore brought by Mr Kelly’s brother, Vincent Kelly, for rectification of the 2010 will against the 5 adult children. The claim was opposed by 2 of the adult children.

Was there a clerical error in the 2010 will?

The claim for rectification in this case was put forward on the basis that there had been a clerical error. Lord Neuberger considered the meaning of ‘clerical error’ in the case of Marley v. Rawlings [2014] UKSC 2. He held that ‘clerical error’ could have a wider meaning, ‘namely a mistake arising out of office work of a relatively routine nature’, as opposed to a narrow meaning which would typically be limited to mistakes involved in copying or writing out a document.

In the case of Kelly, there was a clear differentiation between the solicitor’s handwritten attendance note recording Mr Kelly’s testamentary intentions and the wording of the will. Master Shuman was satisfied that the handwritten note was an accurate record of the instructions given by Mr Kelly when he prepared the will. He held that it was clear that this was a clerical error arising out of office work and that it is therefore a strong case for rectification of the will.

Where was Mr Kelly’s domicile at the date of his death?

The Defendants argued that the 1982 Act did not apply to the will because it had been made in Ireland and because Mr Kelly was not domiciled in England.

Mr Kelly‘s domicile of origin was the Republic of Ireland. However, on the evidence before the Court, Master Shuman found that Mr Kelly was domiciled in England both at the time of making the 2010 will and at the time of his death.

In considering which law should apply, Master Shuman found no specific treatment of rectification in the text that governs the position on the conflict of laws. In the absence of guidance, he held that it made “sense for the law of the deceased’s domicile to determine issues of essential validity and construction, in respect of movables, including this claim for rectification”. That being the case Master Shuman held that English law on rectification under the 1982 Act applied to the will.

Permission to Proceed Out of Time

The third issue that had to be decided by Master Shuman was whether to grant permission for the will to be rectified given that the claim had been issued 2 years and 11 months out of time.

In considering this issue, Master Shuman compared the Court’s approach to allowing applications to extend time under section 4 of the Inheritance (Provision for Family and Dependents) Act 1975 (“the 1975 Act”). Master Shuman found that to simply align the guidelines from applications under the 1975 Act to applications to extend time under section 20 of the 1982 Act is to disregard the fundamentally different nature of these claims. This is because claims for the rectification of wills try to give effect to the testator’s true intentions. Whereas the effect of 1975 Act claims is to depart from the testator’s intentions. Accordingly, he found that a more flexible approach should be used in relation to claims for the rectification of wills.

Master Shuman considered that it was undoubtedly just and proper in the circumstances of this case to grant permission. In coming to this decision, Master Shuman found the fact that negotiations had taken place at the time that probate was granted, that there was an explanation for the delay in issuing the claim, there had been no distribution of the estate and that there was a strong case for rectification were all factors in favour of granting permission.

Summary

The case shows a growing willingness of the courts to intervene and correct errors in will drafting, following on from the Marley v. Rawlings case. In this case, the rectification in question involved a rewriting of the will based on factual evidence of intent, not merely correcting misleading wording arising from a clerical error. Furthermore, not only did the court allow the case to proceed out of time but the case also established that the courts can rectify foreign wills.

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