Wills sometimes contain mistakes. In this article we look at how to fix an error in a will and why delay in doing so can be excused.
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When a Will contains an error it is sometimes necessary to ask the court to rectify the mistake. There are strict time limits on applying to fix an error in a Will, but in a recent case, Kelly v Brenna, the court agreed to do so even though that time limit had long since passed.
Patrick Kelly was born as one of nine Children. He made a Will leaving his estate equally between his six brothers and sisters. A couple of years later, on 5 July 2010, he had a meeting with his Solicitors in relation to making a new Will. According to the solicitor’s file Solicitors, he asked for his estate to be divided as follows:
“Residue including English property to sister, Eileen Delaney, Kathleen Kelly (wife of decd brother James) brothers, Michael, Vincent & John and the children of his deceased sister Maureen Brennan, namely Mary, Matthew, Fergus, Vincent, and Damien Brennan in equal shares, subject only to payment of my debts etc. By equal shares I mean one-sixth to each of my siblings and remaining one-sixth equally between children of Maureen Brennan, decd.”
The new Will was then drawn up and executed on the same day. However, the terms of that new Will actually provided for the residuary estate to be divided as follows:
“my sister, Eileen Delaney, my sister in law, Kathleen Kelly (wife of my deceased brother, James Kelly) and my brothers, Michael Kelly, John Kelly and Vincent Kelly and my niece Mary Brennan and my nephews, Matthew, Fergus, Vincent and Damien Brennan (the children of my deceased sister, Maureen Brennan) in equal shares absolutely subject only to the payment of my debts, funeral and testamentary expenses”.
Accordingly, the actual effect of the Will was to divide the estate into ten equal shares, rather than six, with the one-sixth share that would have passed to his late sister, Maureen, being further divided between her five Children.
Vincent Kelly, Patrick’s brother and Executor wanted to know how to fix an error in a Will and was told he could apply apply under Section 20 of the Administration of Justice Act 1982 for “Rectification”.
Section 20(1) of the Administration of Justice Act 1982 provides that, “If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence (a) of a clerical error; or (b) of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions”.
However, section 20(2) of the Administration of Justice Act 1982 goes on to say that any application to fix an error should be made within six months of a Grant being first taken out.
Vincent’s application for rectification was brought outside of that six month period, so the Court’s permission needed to be sought.
The Court agreed that there had been a clear clerical error in the solicitor’s office and granted permission for the Application to be brought outside the six month period.
Reasons given for the delay in applying included:
(i) uncertainty whether Patrick was domiciled in England and Wales or in Ireland;
(ii) whether the 2010 Will was to be considered an Irish Will or an English Will, which would impact upon the availability of Rectification; and
(iii) if the Children of Maureen would pursue other claims against Patrick’s estate.
Accordingly, even though the Application was not issued for over three years from the date of death, it was still allowed and the Court ordered that the Will be rectified.