Kelly v Brennan & Ors (Rev 1)

A will may be rectified under Administration of Justice Act 1982, section 20 where a clerical error causes it to fail to give effect to the testator’s intentions. “Clerical error” has a broad meaning extending to mistakes arising from routine office work in preparing or executing a will.

Permission to apply after six months is discretionary. The court must consider all the circumstances, including the explanation for delay, negotiations, distribution of the estate, prejudice, alternative remedies and the strength of the rectification claim. The approach is more flexible than under the corresponding provision for family-provision claims.

The claimant, a beneficiary and executor, sought rectification of the deceased’s 2010 will. The will divided the residue equally between ten named beneficiaries. The claimant alleged that the deceased had instead intended six equal shares, with one share divided between the five children of a deceased sister.

The claim was issued nearly three years after probate, so permission was required under section 20(2) of the Administration of Justice Act 1982. The defendants also disputed whether English law applied, because the deceased was born and owned land in Ireland. The issues were whether there was a clerical error, which law governed rectification, and whether permission should be granted.

1. Rectification. The contemporaneous attendance note accurately recorded the deceased’s instructions to divide the residue into six shares. The wording of the executed will, which divided the residue equally between ten beneficiaries, resulted from a clerical error in the preparation of the document. Following Marley v Rawlings [2014] UKSC 2, “clerical error” was given a wide meaning covering mistakes arising from routine office work. The will was rectified in the terms sought.
2. Applicable law. The deceased had acquired a domicile of choice in England and remained domiciled there at death and when giving the relevant instructions. English law governed rectification of the movable property and the English estate. The Irish land was unaffected. Rectification was analogous to matters of essential validity and was closely intertwined with construction.
3. Permission out of time. The considerations summarised in Berger v Berger [2013] EWCA Civ 1305 were relevant, but the approach could not simply be transplanted from claims under the Inheritance (Provision for Family and Dependants Act 1975. The court adopted a flexible but principled approach. The claim was exceptionally strong, negotiations had taken place, the estate had not been distributed, and no substantial prejudice was shown. The alternative negligence claim did not determine the issue.
4. Permission under section 20(2) was granted and the 2010 will was rectified.