Kelly v Brennan & Ors (Rev 1)

Kelly v Brennan & Ors (Rev 1)

There was a clear clerical error in the 2010 will, as evidenced by contemporaneous notes and unchallenged testimony, resulting in the residue being divided into 10 shares instead of the intended 6. The deceased was domiciled in England at death, so English law applies. The claim for rectification is strong, the estate has not been distributed, and there is no significant prejudice to the defendants. Permission to bring the claim out of time is granted and the will is rectified to reflect the deceased’s true intentions.

Parties
Claimant: Vincent Kelly; Defendant: Mary Brennan; Defendant: Matthew Brennan; Defendant: Fergus Brennan; Defendant: Vincent Brennan; Defendant: Damien Brennan
Jurisdiction
England and Wales
Judgment Date
12 February 2020
Procedural Posture
Probate/rectification of Will / Judgment After Contested Application for Rectification
Outcome
Claim allowed. Permission to bring claim out of time granted. Rectification of will ordered.
Legal Topics
Rectification of Wills, Clerical Error, Domicile, Extension of Time to Apply for Rectification
Succession Law Probate Private International Law Rectification of Wills Clerical Error Domicile Extension of Time to Apply for Rectification

Case Brief

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Parties

Vincent Kelly

Claimant

Mary Brennan

Defendant

Matthew Brennan

Defendant

Fergus Brennan

Defendant

Vincent Brennan

Defendant

Damien Brennan

Defendant

Procedural Posture

Probate/rectification of Will / Judgment After Contested Application for Rectification

Legal Issues

  1. 1 Whether there was a clerical error in the will for purposes of rectification under section 20(1)(a) of the Administration of Justice Act 1982
  2. 2 What was the deceased’s domicile at death and which law applies
  3. 3 Whether the court should grant permission to bring the claim out of time under section 20(2) of the 1982 Act

Ratio Decidendi

There was a clear clerical error in the 2010 will, as evidenced by contemporaneous notes and unchallenged testimony, resulting in the residue being divided into 10 shares instead of the intended 6. The deceased was domiciled in England at death, so English law applies. The claim for rectification is strong, the estate has not been distributed, and there is no significant prejudice to the defendants. Permission to bring the claim out of time is granted and the will is rectified to reflect the deceased’s true intentions.

Court Disposition

Claim allowed. Permission to bring claim out of time granted. Rectification of will ordered.

Orders

  • Permission granted under section 20(2) of the Administration of Justice Act 1982 to bring the claim.
  • Rectification of the 2010 will in the terms sought by the claimant.