Kelly v Brennan [2020] EWHC 245 (Ch)

The deceased's 2010 will erroneously divided his residue between 10 beneficiaries equally instead of six shares among siblings with one share split between his late sister's five children. The court rectified the will under section 20(1)(a) of the Administration of Justice Act 1982, granting permission out of time.

Facts

Patrick Joseph Kelly (the deceased) was born in Ireland in 1934 but moved to England in the early 1970s where he lived until his death on 9 June 2014. He never married and had no children. On 5 July 2010 he executed a will at R A Osborne & Son (RAO) in Ireland, with Cyril Osborne taking instructions. Cyril Osborne’s contemporaneous attendance note recorded that the residue (including English property) was to be divided into sixths: one-sixth each to his sister Eileen, sister-in-law Kathleen, and brothers Michael, Vincent and John, with the remaining one-sixth divided equally between the five children of his deceased sister Maureen Brennan (the defendants).

However, the 2010 will as drafted simply listed all ten beneficiaries and gave the residue to them “in equal shares absolutely”, producing a ten-way division rather than the intended sixth-based division. Probate was granted to the claimant (Vincent, the deceased’s brother) on 7 November 2014. The claim for rectification was issued on 1 May 2018, some three years after the six-month period under section 20(2) of the Administration of Justice Act 1982 had expired.

Issues

Three primary issues arose: (1) whether there was a clerical error in the 2010 will within the meaning of section 20(1)(a) of the 1982 Act; (2) what the deceased’s domicile was at the date of his death, and whether English law applied to the rectification claim; and (3) whether permission should be granted under section 20(2) to bring the claim out of time.

Arguments

Claimant

Michael Bowmer, for Vincent, submitted that the attendance notes unequivocally demonstrated the deceased’s intention to create a six-way residual division and that the discrepancy in the will was a clerical error arising in office work, falling within the wide interpretation of “clerical error” endorsed in Marley v Rawlings [2014] UKSC 2. He submitted that the deceased was domiciled in England at death and that English law governed the rectification claim. He also argued that Cowan v Foreman [2019] EWCA Civ 1336 supported a flexible approach to the section 20(2) time limit.

Third and Fourth Defendants

Fergus (in person) and Vincent B (through Joshua Lewison) contested the claim. Mr Lewison argued that sections 17 to 22 of the 1982 Act extend only to England and Wales and that an English court could not rectify a foreign will. He challenged Vincent’s delay, particularly between May 2017 and May 2018, submitted that the estate was effectively fully administered, argued prejudice from the delay, and contended that any equitable claim was barred by acquiescence.

Judgment

Clerical Error

Master Shuman was satisfied that Cyril Osborne’s handwritten attendance docket and typed memo of 5 July 2010 accurately recorded the deceased’s testamentary intentions to divide the residue into six shares. The will as drafted failed to carry out those intentions by producing a ten-way division. Applying the wide interpretation of “clerical error” from Marley v Rawlings, the Master held this was “a clear clerical error arising out of office work” and “a strong case for rectification”.

Domicile and Applicable Law

The Master held that, although the deceased’s domicile of origin was Ireland, he had acquired an English domicile of choice. He had lived in England from the early 1970s until his death, owned substantial English assets, purchased a flat in Fulham in 2009, sold the family home in Ireland in 2010, and regarded London as his home. The Master rejected Mr Lewison’s submission that English law could not apply. Rectification was most analogous to essential validity, which for movables is governed by the law of the testator’s domicile at death (Dicey Rule 154). English law therefore applied to the rectification claim.

Permission Under Section 20(2)

Applying a flexible, principled approach informed by Cowan v Foreman, and noting that section 20 of the 1982 Act should be more flexible than section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 because rectification seeks to give effect to testamentary intention rather than derogate from it, the Master examined the three phases of chronology. Vincent had taken reasonable steps: negotiations with the defendants began shortly after probate, a professional negligence claim against RAO was pursued when negotiations broke down, and Vincent only became aware in April/May 2017 that he could bring a rectification claim in his capacity as beneficiary. The estate had not been distributed, which the Master considered an important factor following Pengelly v Pengelly and McNulty v McNulty. The defendants had provided scant evidence of real prejudice beyond frustration at delayed inheritance. The acquiescence argument failed because Vincent had not had full knowledge of his rights. The rectification claim was extremely strong. Permission was granted and the will was rectified in the terms sought.

Implications

The decision confirms and applies the broad approach to “clerical error” under section 20(1)(a) of the 1982 Act established in Marley v Rawlings, extending it to typographical/drafting mistakes that produce a different residual division from that intended by the testator, where clear contemporaneous instructions exist.

Significantly, the Master held that applications for permission under section 20(2) of the 1982 Act call for a more flexible approach than applications under section 4 of the 1975 Act, because rectification serves rather than overrides testamentary intention. Non-distribution of the estate is an important factor, and the statutory time limit is not to be enforced as a disciplinary measure for its own sake. The decision also clarifies that, where a grant has been taken out in England and the deceased was domiciled in England, English law governs rectification of the will, at least in respect of movables, regardless of where the will was drafted and executed.

The judgment is of practical significance to executors, beneficiaries and practitioners dealing with cross-border estates and drafting errors. It offers reassurance that genuine clerical mistakes will not be permitted to defeat testamentary intention, even where considerable delay has occurred, provided the estate remains undistributed and no real prejudice is shown. The decision is, however, fact-sensitive: it does not create a general licence for delay, and the Master emphasised that earlier and more frank communication with opposing beneficiaries would have been preferable.

Verdict: The court granted permission under section 20(2) of the Administration of Justice Act 1982 to bring the claim out of time and ordered rectification of the 2010 will in the terms sought by the claimant, so that the residue is divided into six equal shares, with one-sixth share divided equally between the five Brennan children.

Source: Kelly v Brennan [2020] EWHC 245 (Ch)