We’re continuing a popular regular feature from last year where we examine key cases in relation to will writing and other estate planning activities to keep you up to date on recent developments in the law. All cases covered will be recent, relevant, and widely reported. This time we are looking at Re Kelly (Deceased)  EWHC 245 (Ch).
The deceased was born in the Republic of Ireland but moved to England in the 1970’s where he lived until his death in 2014. Although he maintained some connection with Ireland, namely through some land there he inherited from his parents and through regular visits to his siblings, the majority of his estate was held in England. From the evidence it seemed clear he had no intention to return to Ireland. This domicile issue was important to consider as it would affect whether a rectification claim could be brought at all.
The deceased’s will was made with a firm of solicitors in Ireland and left his estate equally between five of his surviving siblings and the five children of his deceased sister, so in ten equal shares. This was not his intention. The instructions had been for his estate to be split into six equal shares, with a share passing to each of the five living siblings and the sixth share being shared equally between his deceased sister’s five children.
This obviously increased the share of the estate that the nieces and nephews were to receive and reduced the share that the deceased’s siblings would take. Attempts were made to resolve the issue amicably with a deed of variation, but these negotiations amounted to nothing. This led to the executor (also a beneficiary) bringing a claim for rectification of the will in May 2018 on the grounds that there had been a clerical error.
The adult children of the deceased sibling opposed the claim, as you might expect since administering the estate exactly according to the terms of the will left them much better off. The main arguments they put forward were:
- There was no clerical error.
- The English courts could not rectify an Irish Will and the 1982 Act does not apply to a will made in Ireland.
- The deceased was not domiciled in England.
- The claim was brought well outside of the 6-month time limit.
There are two main things to consider here as background. Firstly, when can a rectification claim be brought?
Under s20(1) of the Administration of Justice Act 1982 where the court is satisfied that a will fails to carry out the testator’s intentions they may order the rectification of the will if the reason it fails to carry out the intention is due to:
- A clerical error, or
- A failure to understand the testator’s intention.
Clerical errors are errors made by the drafter in the preparation of the will whoever they are – a professional drafter or the testator writing their own will could make a clerical error. It can also apply to errors in execution. In fact, the leading rectification case of Marley v Rawlins  UKSC 2 involved such an error where a married couple made mirror wills but accidentally signed each other’s will rather than their own.
Under s20(2) applications for rectification must be brought within 6 months of the grant of representation being taken out. This time limit is discretionary though, so the court can grant leave for an application out of time if it is right to do so.
Secondly, where there is a cross-border element which jurisdiction’s law applies?
This is a point that it seems has never had to be considered before. While there is clear law on which law applies when determining capacity, formal validity, essential validity and interpretation, there is no similar authority for rectification.
In Re Kelly there was no problem establishing the clerical error. There was clear evidence of the deceased’s intention in the attendance note held by the firm who had drafted the will, and this very obviously did not match up with the will. There had clearly been some error in copying the instructions into the will.
On the domicile point the court found that the deceased’s domicile of origin was Ireland but that he had acquired a domicile of choice of England and had died domiciled in England. Although the will was made and executed in Ireland, the court rejected the argument that they could not rectify the will. They considered that the law of rectification was analogous to the law of material validity and interpretation, both of which apply the law of the testator’s domicile. The deceased was domiciled in England at the time of his death, so English law applied to claims of rectification.
The final point to consider was whether the court should allow the claim to be brought outside of the 6-month time limit. By time the claim was brought they were nearly 3 years past the time limit for applications. This led to an interesting comparison between considerations when allowing an Inheritance (Provision for Family and Dependants) Act 1975 claim outside of the time limit and when allowing a rectification claim outside of the time limit, as previous cases have sought to align these guidelines. The judge commented that for rectification claims a more flexible approach should be allowed as the purpose of this type of claim is to uncover the true testamentary intention and give effect to it, whereas a 1975 Act claim is to deviate from the testator’s wishes. Or as Mater Shuman poetically put it, ‘effectively drive a coach and horses through testamentary intention’.
Ultimately the claim for rectification was successful.
The full judgement can be accessed for free on Bailii here: https://www.bailii.org/ew/cases/EWHC/Ch/2020/245.html