In the context testamentary succession, it is well-established under the rules of private international law that the court can apply domestic law to a foreign will of a testator who was domiciled in this jurisdiction where the court is concerned with issues of capacity, formal validity, material validity or interpretation. However, no authority one way or the other has ever determined whether the law of rectification should be applied in the same way.
The recent decision In the Estate of Patrick Joseph Brennan, sub nom Kelly v. Brennan [2020] EWHC 245 (Ch) is significant in that the court was called upon to decide that question for the first time. By deciding that the will should be rectified even though it was made in Ireland, the court therefore clarified a hitherto unexplored aspect of private international law. Moreover, in deciding that permission should be given for the claim for rectification to be brought some 2 years and 11 months after the expiry of the six month discretionary time limit, the court confirmed that the law is more flexible when dealing with claims for rectification as opposed to claims for reasonable financial provision, and that a combination of a strong claim and the fact that the estate had not been distributed is more often than not likely to outweigh other considerations.
The background
The deceased was born in Ireland in the 1930’s. He was one of nine children and moved to England in the early 1970’s. He lived and worked in London as a joiner for the remainder of his life and died in a nursing home in London in June 2014. He never married and had no children. During his lifetime he inherited some land and a dilapidated cottage in Ireland from his parents and maintained some connection with Ireland, but the evidence was that he had no intention to return to live there. He died leaving a net estate with a value of £1.642M in England compared with assets in Ireland including the land with a value of only €86k.
Because of longstanding family connections the deceased nonetheless made a will in 2010 with a firm of solicitors carrying on in practice in Athy in County Kildare. He had also made an earlier will with the same firm in 2006. His instructions, recorded in a short attendance note, were to divide his estate six ways between five of his surviving brothers and sisters and the five adult children of a further sister who had pre-deceased him. Unfortunately, by a drafting error, the will simply left his estate to be divided between those ten individuals in equal shares. The effect was to reduce the gifts to the five surviving brothers and sisters by over £100,000 each and correspondingly to increase the gifts to the five adult children.
The error was appreciated relatively soon after the deceased died, and before a grant of probate was taken out in November 2014. Negotiations took place over many months with the object of resolving the error consensually through the execution of a deed of variation. Those negotiations eventually broke down in May 2016 and the executor indicated in that case that he would have to distribute the estate in accordance with the will as drafted and estate accounts were subsequently prepared on that basis. In the meantime the five brothers and sisters brought proceedings against the solicitors in Ireland for negligence in which they claimed as damages the difference in the value of the gifts in the will. However, by way of a defence to that claim, they were met, in May 2017, before any distribution of the estate had taken place, by the argument that they had to mitigate their loss by seeking rectification of the will. A claim seeking rectification was eventually brought in May 2018.
The grounds for rectification
Since 1982 the English law on rectification is of course to be found in the Administration of Justice Act 1982. Section 20(1) provides that if the court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions in consequence of (a) a clerical error; or (b) a failure to understand his intentions, it may order that the will should be rectified so as to carry out his intentions. Under section 20(2) of the 1982 Act an application for an order under the Act shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out.
According to judgment of Lord Neuberger of Abbotsbury in the Supreme Court decision of Marley v. Rawlings [2015] AC 129 – the leading and highest level case on the statutory power of will rectification – the effect of section 20 together with other provisions in the 1982 Act, is to make the law on wills more flexible than was previously the case; the purpose of these provisions is so far as possible to ‘save’ wills. This plainly means giving effect so far as possible to what the testator intended. One of the other provisions in the 1982 Act to which Lord Neuberger referred is section 21; this provides that in so far as any part of a will is meaningless, or the language used in any part of it is ambiguous on its face, or in so far as evidence other than evidence of the testator’s intention shows that the language used in any part of it is ambiguous, the court may admit extrinsic evidence, including evidence of the testator’s intention, to assist in its interpretation. This shares the same object of rectification of giving effect to the testator’s intention.
The claim for rectification in Kelly was advanced on the basis of clerical error. So far as the nature of “clerical error” is concerned, the Supreme Court confirmed in Marley that this is and should be regarded as a broad concept and is not necessarily limited to mistakes in copying or writing out a document. The expression does not have a precise or technical meaning but can if necessary extend to mistakes arising out of activities which can properly be described as ‘clerical’ such as preparing, filing, sending and organising the execution of a document. Hence in Marley, the expression was sufficiently wide to encompass the mistake which arose as a result of a couple executing each other’s will.
Although it was unnecessary for the Supreme Court’s decision, Lord Neuberger also expressed the view in Marley that the court enjoyed a common law power of rectification. Whether or not that was the case, the commonly understood position before the introduction of the 1982 Act was set out in the Law Reform Committee Nineteenth Report; Interpretation of Wills (1973). This was to the effect that the court enjoyed two very limited and tightly controlled common law powers which might be regarded as analogous to a limited jurisdiction to rectify a will: the first was part of the law of probate and limited to omitting words from a will where it could be shown that the words had been inserted by fraud or without the testator’s knowledge and approval; the second was to omit or add words provided the words which did not reflect the testator’s intention and the words which should be added to give effect to that intention were clear from the face of the will itself.
The opposition to the claim
Two of the adult children who benefited from the error in the will opposed the claim. They advanced numerous arguments: that there had been no clerical error; that the court could not interfere with, or rectify, the wording of an Irish will, that the 1982 Act did not extend to the will as it had been made in Ireland, that the deceased was not in any event domiciled in England and that for a variety of reasons the court should not grant permission for the claim to be brought as it had been brought considerably outside the six month period provided for in section 20(2) of the 1982 Act.
Clerical error
There was a clear and obvious mismatch between the short attendance note recording the deceased’s instructions and the wording of the will. The attendance note had recorded the testator’s instructions among other things as follows: “By one-sixth shares I mean one-sixth to each of my siblings and one-sixth equally between the children of Maureen Brennan deceased.” The will, on the other hand, contained a gift of residue followed by a list of the ten individuals concerned and added the words “in equal shares absolutely”. Even on a narrow approach to the concept of clerical error, there was a mistake in copying or writing out the will. The court had little difficulty accepting that was the case and, indeed, during the course of the final hearing, the two adult children ultimately conceded that there had been such as error.
Jurisdictional issues
In the context of private international law, the treatment of testamentary succession is set out in Dicey, Morris & Collins on the Conflict of Laws (15th ed.). The treatment is divided into issues of the capacity to make a will, the formal and material validity of a will and the interpretation of a will. As might be expected, the result depends to a very large extent on the domicile of the testator and the lex situs and can be summarised as follows:
- as to capacity the law of the testator’s domicile at the time of making his will determines whether or not he had personal capacity to make a will of moveables and the law of the lex situs governs the question of capacity to make a will of immoveables;
- as to formal validity – by which is meant the requirements for due execution – a will is treated under the Wills Act 1963 as properly executed if its execution conforms to the law of the country where it was executed or the country where, at the time of its execution or his death, the testator was domiciled;
- as to material or essential validity – by which is meant the extent to which certain provisions of a will may be inoperative as a matter of law even though the testator had capacity and the will was validly executed – the law of the testator’s domicile at the time of his death applies to a will of moveables and the lex situs governs the law applicable to a will of immoveables;
- as to interpretation, a will is to be interpreted in accordance with the law intended by the testator and in the absence of indications to the contrary this is presumed to be the law of his domicile when the will was made.
A notable omission from this treatment is any discussion of how the law of rectification fits into this analysis. No doubt this is explicable by the fact that it was not until the 1980’s that the power to rectify wills was formally introduced. Before then, as mentioned, the court had certain limited powers regarded as part of the law of interpretation to interfere with the wording of a will, but these were not the true equivalent of rectification.
The court therefore had to decide, first, where the deceased was domiciled. On the evidence, the court decided that the deceased was domiciled in England both at the time of making the will in 2010 and at the time of this death in 2014. The fact that the deceased had travelled to Ireland to make his will and that he was referred to in his will as being from a particular place in Ireland was insufficient to disprove the adoption by the deceased of a domicile of choice in England.
Having determined that to be the case the court rejected the argument that the law of rectification could have no application to the will simply because it was made in Ireland, as if its wording was immune from rectification. Although there was no authority and no discussion of the issue in Dicey, Morris & Collins the court considered there was a strong analogy between both the law of material validity and the law of interpretation, on the one hand, and the law of rectification on the other. Material validity is concerned with the law’s refusal to give effect to the wording of a will, one example being a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. Interpretation is concerned with giving effect to the true intentions of the testator. Both of these objects are mirrored by the law of rectification. The court could discern no logical reason for treating rectification in a different way such as not to apply English law.
The court accepted a point as illustrating the illogicality of any such distinction. Suppose there were a gift in a will to the effect that “I give the sum of £x to my son Ben” where the amount of “£x” in the will was not defined but there was an attendance note making it clear that a gift of £100 was intended. There would in that case be an obvious ambiguity on the face of the will: is the gift of nothing or of something and, if something, how much? As a matter of interpretation the court could have recourse to section 21 of the 1982 Act, admit evidence of the testator’s intention and interpret the will as including the relevant gift of £100. Suppose, however, that that there was a gift in a will to the effect “I give the sum of £10 to my son Bill” but there was an attendance note making it clear what was intended was a gift of £100 not £10. The court could not have recourse to section 21 because there would be no ambiguity on the face of the will and only evidence of the testator’s intention would lead to there being an ambiguity and such evidence is not admissible under the section for that purpose. As such the only route to relief would be an application for rectification relying on the attendance note. The court was persuaded by this and other illustrations that there was no logical basis in terms of private international law for treating the application of English law of rectification differently to the application of the English law relating to material validity or interpretation.
The court also rejected the argument that the 1982 Act could not apply because it was expressed to extend to England and Wales only. This was to confuse the extent of an Act of Parliament with its application. The former simply defines the territorial extent of the Act. The latter is concerned with the matters –the factual situations, persons and events – to which it may apply. So far as applying to ‘foreign’ matters the answer is provided by the relevant system of private international law; hence, for the purposes of testamentary succession, the rules were those the court had identified.
That being the case, if the law applied to rectification as it did to material validity, the deceased was domiciled in England at his death and so English law applied. Alternatively, if the law applied to rectification as it did to interpretation, the deceased was domiciled in England when the will was made, and the mere fact that the deceased had made his will in Ireland was insufficient indication of an intention that Irish law should apply so as to displace the presumption that the law of the deceased’s domicile should apply. This was consistent with the approach adopted in the earlier interpretation case of Re Cunnington [1924] 1 Ch 68.
The court was therefore content to rectify the will applying section 20 of the 1982 Act. However, in case any of its conclusions were incorrect, the court agreed in any event that the same result could be achieved through a slightly more circuitous route by applying English law on interpretation. At common law, as mentioned above, the court is able to omit words from a will as part of the law of probate if satisfied that the words have been added without the testator’s knowledge or approval. The court was able, therefore, to delete from the deceased’s will the words “in equal shares”. Omitting those words left the will ambiguous on its face such that the court could then rely on section 21 of the 1982 Act and admit evidence of the testator’s intention, including the attendance note, to assist its interpretation.
Permission
The judgment is also noteworthy in granting permission for the will to be rectified even though the claim was issued some two years and 11 months after the expiry of the six month period referred to in section 20(2) of the 1982 Act. In that regard the final hearing took place just three weeks after the Court of Appeal’s important decision in Cowan v. Foreman [2019] EWCA Civ 1336 concerning the correct approach to the analogous time limit in the 1975 Act in respect of claims for reasonable financial relief.
In Cowan the Court of Appeal unanimously allowed an appeal from Mostyn J who had refused permission for a claim to be brought and had referred in so doing to the importance of observing time-limits and drawn an analogy with the approach to relief from sanctions. That approach, the Court of Appeal indicated, was wrong and a number of useful points of guidance were given. These included the following:
- the time limit is not disciplinary and the court is not required to take a robust approach;
- the rule must be enforced for a good reason not merely because it is there or for its own sake;
- the rule is meant to provide a measure of certainty for personal representatives and beneficiaries;
- the concept of preventing stale claims is irrelevant;
- an applicant does not need to establish a good explanation for each and every period of delay;
- negotiations both before and after the expiry of the six month period are relevant;
- whether the estate has been distributed is an important if not decisive factor.
In giving permission, notwithstanding the expiry of 2 years 11 months, the court observed the guidance in Cowan as well as that previously given by the Court of Appeal in Berger v. Berger [2013] EWCA Civ 1305, but also indicated that some caution should be exercised in simply aligning the approach under the 1982 Act with that under the 1975. A more flexible approach is justified in relation to claims for the rectification of wills. This is because the aim of rectification is to strive to give effect to the wishes of the testator whereas the effect of the 1975 Act is to interfere with those wishes. This is a point that had been touched on in Chittock v. Stevens [2000] WTLR 643 and is also made with some force in Theobald on Wills (18th ed.).
Although criticism was made by the defendants of the failure to provide a full and detailed explanation for every part of the relevant period of delay, the court considered that it was nonetheless just and proper to extend time. The fact that there was a strong case for rectification, that the estate had not been distributed, that there was an explanation for the delay, that there had been negotiations both before and after the relevant period expired and that no real case of prejudice was made out, with no evidence of a change of position based on an anticipated distribution, were collectively held to be a strong set of factors in favour of granting permission. That was so even without recourse to the additional flexibility identified by the court.
Three particular arguments advanced by the defendants were also rejected. First, it was argued that permission should be refused on the basis that the court should treat the case as one where, in effect, the estate had been distributed because final estate accounts had been drawn up. It was argued that the estate should be regarded as held on trust for the beneficiaries and therefore equated with having been distributed. The court rejected this analysis as overly technical. The relevance of the factor was whether there had been a distribution and whether there was a need to recoup monies from defendants. The factors identified in the authorities did not equate the expectation of receiving a distribution from the estate with an actual distribution; the former was dealt with under rubric of prejudice and change of position, of which there was no evidence.
Second, it was argued that permission should be refused on the grounds that the claim was barred by acquiescence, final estate accounts having been settled and the executor having said that the estate would be distributed in accordance with the will. This was also rejected. Whatever may have been said by or on behalf of the executor was not said on behalf of the beneficiaries and there was no suggestion in any event that what had been said was with full knowledge of the facts and their legal consequences; the executor had received some limited advice about rectification but that advice had been incomplete and wrong.
Third, it was argued that permission should be refused because the beneficiaries had a right of recourse against the Irish solicitors. However, the court was unable to regard that claim as so obvious and straightforward for this to be a decisive factor. Even if the issue of breach of duty might be regarded as clear there were obvious arguments as to whether the loss had been mitigated. In fact the argument involved some circularity of reasoning; to submit that the claimants should not have permission meant that they had potentially delayed bringing the claim, giving rise in turn to the prospect of the negligence claim being defended.
Overall, it might be said that in granting permission the court to some extent affirmed the proposition that permission is likely to be given for a strong claim for rectification where no question of recouping money from defendants arises. It was also a useful confirmation that the approach is more flexible in relation to rectification claims. Whilst the court must take a principled approach one perhaps very good reason for being flexible is to give effect to the testator’s true intentions rather than to sanction what would otherwise be an undeserved windfall.
Michael Bowmer of 4 New Square, Lincoln’s Inn, London WC2A 3RJ specialises in chancery and chancery commercial litigation including all aspects of contentious trusts and probate, company law and insolvency, real estate disputes, and related professional negligence. He acted for the successful claimant instructed by Joe Eizenberg and Jon Quirk at Beale & Company Solicitors LLP.
© Michael Bowmer of 4 New Square, February 2020. The author assume no responsibility to any party in respect of this article. Specific legal advice tailored to specific problems should always be obtained.
