04 March 2020

English Court corrects error in foreign Will despite significant delay


In the recent case of Kelly v Brennan, Master Shuman rectified an error in a Will which would otherwise have resulted in a windfall of around £67,000 each for a niece and four nephews.

Background

Patrick Kelly was born in County Kildare, Ireland, one of nine children. In the 1970s he moved to London. He never returned (other than to visit), never married, and had no children.

Patrick died in June 2014. Two siblings, including his sister Maureen, had pre-deceased. Maureen had a daughter and four sons. He left an Irish estate worth €81,000 and English estate worth £1,642,000.

Patrick had seen a solicitor in County Kildare who drafted his Will in 2010. The Will divided his residuary estate into 10 equal shares: one each for four of his surviving siblings; one for the wife of his deceased brother; and one each for Maureen’s five children. It would appear he overlooked other members of his family due to his concerns about their spending habits.

However, the solicitor’s contemporaneous attendance note records that Patrick’s actual instruction had been to divide residue into six equal parts, such that Maureen’s five children would each take an equal share of one part.

Vincent, Patrick’s brother, obtained an English grant of probate in November 2014, and an Irish grant in April 2016.

The error in the Will was quickly identified. There was some negotiation but Maureen’s children declined to surrender their windfall.

The initial advice Vincent received was that, although there was a very strong case for rectification, it might not be available because the Will was Irish. So, relatively early in the estate administration he produced estate accounts which assumed the estate would be distributed in 10 equal shares. He also issued a professional negligence claim in Ireland against the solicitor who had drafted the Will. In 2017, Vincent was given different advice, to the effect that rectification in England was possible (and thus it was appropriate to pursue that remedy in order to mitigate the loss).

Almost a year later, in May 2018, Vincent issued a claim for rectification.

The law

Rectification is a means by which errors in a Will may be corrected. It is available if the applicant can show the Will fails to carry out the testator’s intention due to either:

1. a clerical error; or

2. a failure to understand the testator’s instructions.

An application to rectify should be made within six months of the grant of representation. If not, the applicant must seek the Court’s permission to apply out of time.

The question of whether the English court can rectify a foreign Will does not appear to have been addressed before.

The decision

Master Shuman started her analysis by addressing the substantive issue of whether there was an error that ought to be rectified. She then dealt with domicile, and finally timing.

• Substantive merits

Given the solicitor’s contemporaneous attendance note, she was satisfied that there was a clear clerical error capable of rectification. Indeed she refers to it being so strong it was ‘difficult to see how it could be resisted on the merits’.

• Impact of domicile

There is a dearth of authority about rectification of a Will which has been drafted in a foreign jurisdiction.

The Master decided that Patrick’s domicile at the date of his death should determine whether or not English law applied to enable rectification (rather than the alternative, which was domicile as at the date of the Will).

She also decided that, although Patrick had a domicile of origin in the Republic, the evidence pointed clearly to his having acquired a domicile of choice in England and that was his domicile at the date of his death (and indeed at the date of the Will).

• Permission to apply out of time

Finally, the Master addressed the question of whether to grant permission for the application to be brought out of time.

She was taken to recent decisions such as Bhusate and Cowan v Foreman allowing claims out of time under the 1975 Act (which also has a six-month time limit within which claims should be brought). The Master considered there is a clear argument that it is appropriate to take an even more flexible approach to late applications for rectification.

In this instance she felt that Vincent’s delays were explicable, and the rectification claim strong. She dismissed the argument that the rectification claim should be barred on the basis that Vincent had acquiesced by having initially conceded that the estate be distributed in 10 equal shares.

The Master said that if she were to ‘stand back and ask whether it is just and proper in all the circumstances of this case to extend time for making this claim the answer is an undoubted yes’.

Moral

As with Bhusate and Cowan v Foreman, a strong substantive claim triumphed over procedural/ technical objection.

The defendants were perhaps hampered in their opposition on the timing issue by not taking that as a preliminary issue. But equally, it was very probably a proportionate approach given the amounts at stake.

Josh Lewison who appeared for the unsuccessful defendants is giving a lunchtime seminar – details can be found here.

Authors

Category: Article