Gerling v Gerling & Ors

Permission to seek rectification of a will after the six-month period under the Administration of Justice Act 1982 may be granted where the applicant shows that an extension is just and proper in all the circumstances. Relevant factors include the strength of the claim, the length and explanation of the delay, prejudice, prompt notification, negotiations and whether the estate has been distributed.

Rectification is available where the will fails to give effect to an identified testamentary intention because of clerical error or failure to understand instructions. It is unavailable merely to fill a gap where the testator had no relevant intention.

The claimant, acting as executrix of her late mother’s estate, sought rectification of a 2004 will under section 20 of the Administration of Justice Act 1982. The will placed one half of the residue in trust for the deceased’s son during his lifetime but made no effective provision for the capital after his death.

The claim was issued outside the six-month period. The court had to decide whether permission should be granted and whether the evidence established that the drafting solicitor had failed to understand the testatrix’s instructions. The court also considered the position of the son, who was unrepresented but had consented to the proposed rectification.

1. Permission to apply out of time was granted. The discretion under section 20(2) of the Administration of Justice Act 1982 is unfettered, but the applicant bears a substantive burden. The court must consider the strength of the claim, delay, its explanation, prejudice, prompt notification, negotiations and distribution of the estate, and ultimately ask whether an extension is just and proper.

2. The authorities, including Price v Craig and Pengelly v Pengelly, supported granting permission where the problem was discovered only after the limitation period and the delay caused no prejudice.

3. Under section 20(1), rectification requires proof that the will fails to carry out the testator’s intentions because of a clerical error or a failure to understand instructions. The jurisdiction does not extend to a gap arising because the testator had no intention relevant to the events that occurred. The distinction stated in Bell v Georgiou was applied.

4. The attendance notes established, on the balance of probabilities and notwithstanding the high standard of proof required, that the testatrix intended her son to benefit during his lifetime and that any unexhausted capital should pass to her daughter. The drafter had failed to understand those instructions. Rectification was therefore made out.

5. The will was rectified so that the daughter took the remaining capital after the son’s life interest, subject to powers to apply capital for his benefit. The order was postponed for 28 days after service on the son, with liberty to apply within 14 days, because he was unrepresented and potentially affected.