Gerling v Gerling & Ors [2010] EWHC 3661 (Ch) (21 December 2010)

Gerling v Gerling & Ors [2010] EWHC 3661 (Ch) (21 December 2010)

The will failed to carry out the testatrix's intentions due to the draftswoman's failure to understand instructions; the testatrix intended the residuary estate, after her son's life interest, to pass to the claimant. The requirements for rectification under section 20(1)(b) of the Administration of Justice Act 1982 are satisfied. Permission to apply out of time is granted as no prejudice has arisen and the delay was justified.

Citation
[2010] EWHC 3661 (Ch)
Parties
Claimant and First Defendant: Jacqueline Catherine Gerling; Second Defendant: Colin Robert Ryan; Third Defendant: Daniel Robert Gerling; Fourth Defendant: Alexander James Gerling
Jurisdiction
England and Wales
Judgment Date
21 December 2010
Procedural Posture
Part 8 Claim (chancery, Probate) / Judgment on Application for Rectification of Will
Outcome
Application for rectification granted, with order to be served on second defendant and delayed in effect to allow for possible challenge.
Legal Topics
Rectification of Wills, Administration of Estates, Testamentary Intention, Time Limits for Rectification, Partial Intestacy
Probate Wills and Estates Rectification of Wills Administration of Estates Testamentary Intention Time Limits for Rectification Partial Intestacy

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Parties

Jacqueline Catherine Gerling

Claimant and First Defendant

Colin Robert Ryan

Second Defendant

Daniel Robert Gerling

Third Defendant

Alexander James Gerling

Fourth Defendant

Procedural Posture

Part 8 Claim (chancery, Probate) / Judgment on Application for Rectification of Will

Legal Issues

  1. 1 Whether the will of Catherine Brigid Ryan should be rectified under section 20 of the Administration of Justice Act 1982 to reflect the testatrix's true intentions regarding the residuary estate after her son's death
  2. 2 Whether permission should be granted to apply for rectification outside the statutory six-month time limit

Ratio Decidendi

The will failed to carry out the testatrix's intentions due to the draftswoman's failure to understand instructions; the testatrix intended the residuary estate, after her son's life interest, to pass to the claimant. The requirements for rectification under section 20(1)(b) of the Administration of Justice Act 1982 are satisfied. Permission to apply out of time is granted as no prejudice has arisen and the delay was justified.

Court Disposition

Application for rectification granted, with order to be served on second defendant and delayed in effect to allow for possible challenge.

Orders

  • Will of Catherine Brigid Ryan to be rectified to provide that the residuary estate, after exhaustion of Colin's life interest, passes to Jacqueline Gerling, subject to specified amendments to the draft clause.
  • All debts, funeral and testamentary expenses to fall upon the residuary estate as a whole.