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 1970's 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...