As can be imagined, there are often situations where clerical errors are made when a will has been drafted and executed, but not spotted by either the testator (the person making the will) the witnesses to the will (who often do not know what is in the contents of the will), or in fact the professional solicitors or professional will writing firms, or indeed other professional firms, that may have acted in connection with the drafting of the will.
As can probably imagine, there is a long history of what is called ‘case law’ relating to claims made by various parties, as to the rectification of a will, as it affects the administration of the estate.
This can often lead to situations where the will says one thing, but in fact the true position is something different, and the onus of proof is on the applicants to show there was a clerical error, or indeed some other error, that should mean the Court give an Order to rectify the will as to its true position.
The most obvious types of claims in this respect are clerical errors, or ‘typos’, which were not spotted at the time of the execution of the will.
However recently there has been a case ‘Re Kelly (deceased) 2020 EWHC 245 (Ch).
This case raised various aspects as to the rectification of wills, and also to other issues relating to the above, and the law in general terms.
The deceased Mr Kelly, 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 though some land, which he inherited from his parents, and through regular visits to his siblings, the majority of the estate was held in England. From the evidence it seemed clear that he had no intention to return to Ireland. This domicile issue was important to consider, as it would effect whether a rectification claim could be brought at all.
The deceased will was made with a firm of solicitors in Ireland, and left his estate equally between five of his serving siblings, and the five children of the deceased’s sister, so in affect 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 further five children.
This obviously increased the share of the estate that the nieces and nephews were to receive, and reduce the share that the deceased siblings would take.
As always in such matters, attempts were made to resolve the issue before it came to the Court in an amicable fashion, with what is known as a Deed of Variation (see other articles). However these negotiations over a period of time 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 recify 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 the specific six-month time limit.
The Law
There are two main things to consider here as background. Firstly, when can a rectification claim be brought?
Under Section 20 (1) of the Administration of Justice Act 1982, where the Court is satisfied that a will fails to carryout the testators intention, 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 (the person writing the will) could make a clerical error. It can also apply to errors in execution.
In fact the leading rectification case of ‘Marley v Rawlins’ (2014) UKSC 2, involves such an error where a married couple made mirror wills, but accidentally signed each others will rather than their own.
Under Section 20 (2), applications for rectification must be brought within six months of the Grant of Representation being taken out. This time limit is discretionary though, so that a Court may grant leave for an application out of time, if it is right to do so.
Secondly, where there is a cross boarder element (a situation simply meaning between different countries) which jurisdiction law applies?
This is a point that it seems has never had to be considered before. Whilst there is clear law on which law applies when determining capacity, formal validity, essential validity and interpretation, there is no similar authority for rectification.
The case 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 the deceased 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 the material validity and interpretation, both which applied the law of the testators domicile. The deceased was domiciled in England at the time of his death, so English law applied to the claim of rectification (interesting view and decision by the judge).
The final point to consider was whether the Court should allow the claim to be brought outside the sixth-month time limit. By the time the claim was brought, they were nearly three years past the time limit for application. This led to an interest in comparison between considerations when allowing an Inheritance (For Provision for Family and Dependants) Act 1975 claim outside the time limit, and when allowing a rectification claim outside of the time limit, as previous cases have sort to align these guidelines. Judge commentated that for rectification claims, a more flexible approach should be allowed, as the purpose of this type of claim is to uncover the true untestimentory intention, and give effect to it. Whereas in the 1975 Act claim is to deviate from the testators wishes. Or as the judge politely put it, ‘Affectively drive a coach and horses through testementorary intention’.
Ultimately the claim for rectification was successful, and the administration proceeded on that basis.
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