Jacqueline Catherine Gerling v Jacqueline Catherine Gerling and Others
| Jurisdiction | England & Wales |
| Judge | Judge Hodge |
| Judgment Date | 21 December 2010 |
| Neutral Citation | [2010] EWHC 3661 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: OMA30399 |
| Date | 21 December 2010 |
[2010] EWHC 3661 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
His Honour Judge Hodge Qc
Sitting as a Judge of the High Court
In the estate of Catherine Brigid Ryan, deceased
Case No: OMA30399
Mr David Cooney (Solicitor Advocate) appeared on behalf of the Claimant and First Defendant.
The Second, Third and Fourth Defendants were not present and were not represented.
Judge Hodge Qc:
This is my extemporary judgment in the matter of the estate of the late Catherine Brigid Ryan in proceedings between the claimant, Miss Jacqueline Catherine Gerling, in her capacity as executrix of that estate, and Miss Jacqueline Catherine Gerling as first defendant, in her capacity as a beneficiary of that estate, her brother, Mr Colin Robert Ryan, as second defendant, Mr Daniel Robert Gerling as third defendant, and Mr Alexander James Gerling as fourth defendant (Claim number 0MA30399).
By a Part 8 claim form issued in the Manchester District Registry of the Chancery Division on 3 June 2010 the claimant seeks relief by way of rectification of the last Will of her late mother, Catherine Brigid Ryan. The Will is dated 28 January 2004 and was prepared by a legal executive, Miss Alison Malam, then employed by a firm of solicitors practising under the style or title of Hallows Associates from offices at Mold.
The Will was dated 28 January 2004 and it would appear, from a contemporaneous attendance note dated 16 December 2003 prepared by Miss Malam, to have been made at a time when the testatrix was 78 years of age. The deceased died on 27 April 2004 and probate of her last Will was granted to the claimant, as sole proving executrix, out of the Liverpool District Probate Registry on 19 January 2005.
It was not until the claimant, in her capacity as sole proving executrix, consulted her present solicitors, Aaron & Partners of Chester, that it was appreciated that there was a problem with one aspect of the residuary gift created by the Will. That was discovered when the claimant first went to consult solicitors on or about 16 November 2009. Those solicitors immediately wrote to the firm of solicitors who had been responsible for the drafting of the Will, and who had acted in the initial administration of the estate and the proving of the Will, on 1 December 2009. Thereafter there was some short delay whilst the solicitors' files were taken out of archive and consulted, and while the insurers acting for those solicitors confirmed that an application should be made to rectify the Will at the expense of those insurers. It was in those circumstances that the application to rectify the Will was initiated by the issue of the Part 8 claim form on 3 June 2010. That was within seven months of the discovery of the potential problem.
Paragraph 1 of the claim form seeks, in those circumstances, an order granting the claimant permission to apply under section 20 of the Administration of Justice Act 1982 to rectify the Will notwithstanding that the period of six months from the date on which representation in regard to the estate was first taken out has ended.
By section 20 (2) an application for an order under section 20 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 deceased's estate is first taken out.
There are a number of authorities governing the grant of permission to make a claim to rectify a Will outside the six months' time limit. The discretion is unfettered; but the burden of establishing a case for making a claim to rectify more than six months after the date on which representation was first taken out lies with the applicant for such relief; and it is a substantive burden, and not merely a procedural time limit. Relevant considerations include the strength of the claim, the length of the delay, the reasons for the delay, the prejudice to which it may have given rise, the promptitude with which the claim was first notified, the existence of negotiations, and whether the estate has been distributed. Ultimately, the court is required to stand back and to ask whether it is just and proper, in all the circumstances of the case, to extend time for making the claim.
In the case of Price v Craig [2006] EWHC 2561 (Ch), reported at [2006] WTLR 1873, Mr Michael Furness, QC, sitting as a Deputy Judge of the Chancery Division, gave permission to apply to rectify a Will out of time in a case where the problem in question had not come to light until after the end of the six month period, and when no-one had been prejudiced by the delay. I followed that decision when sitting as a Judge of the Chancery Division in the case of Pengelly v Pengelly [2007] EWHC 3227 (Ch), reported at [2008] Ch 375: see paragraphs 13–14.
I am satisfied in the present case that it is appropriate, in the exercise of the Court's discretion, to grant permission to make the application out of time. As in the two cases I have cited, the problem did not come to light, for understandable reasons, until after the end of the six month period. No-one has been prejudiced by the delay; and no-one actively opposes the relief sought. In those circumstances, I am satisfied that it is a proper case for the exercise of the Court's discretion to allow the application to proceed out of time.
The application is supported, a little surprisingly since this is a Part 8 claim, by particulars of claim. However, those particulars of claim have been verified by a statement of truth made by the claimant and therefore can be treated by the court as evidence. In addition, there is also before the court a witness statement, verified by a statement of truth, from Mr Richard Clive Hallows dated 20 August 2010, together with exhibit RCH1. Mr Hallows is a solicitor and the senior partner in the firm of Hallows Associates which was responsible for the drafting of the Will. He indicates that the draftswoman was Miss Malam, a legal executive at the firm. She has since left the firm and is now practising from offices at Abergele. I am told by Mr Cooney, the solicitor advocate appearing for the claimant, that it has not proved possible to obtain any evidence from her. In those circumstances, Mr Hallows has made a witness statement indicating that his firm is of the view that the testatrix's Will did not deal with matters properly, and that the Will requires rectification, and that his firm is content with the application to rectify the Will.
He makes it clear (in paragraph 2) that he was not involved in the production of the Will and was not aware of it until having been advised by the claimant's present solicitors, Aaron & Partners, by letter on or about 1 December 2009. His knowledge is gained from considering the firm's archived file of correspondence and draft documentation, which he exhibits as exhibit RHC1. His evidence, therefore, is of limited assistance to the Court, being derived essentially from the primary documentary material, and, in particular, the initial attendance note made by Miss Malam on 16 December 2003.
It is appropriate at this point for me to relate the material provisions of the Will, and to identify the problem to which it has given rise as it is presently drafted. The Will was executed on 28 January 2004 by the testatrix in the presence of Miss Malam and another employee of Hallows Associates. By clause 1 the testatrix revoked all former Wills and testamentary dispositions made by her. By clause 2 she appointed the claimant, her daughter, and a third party, Yvonne Ryan, resident in Dublin, to be her executors and trustees. Miss Ryan has not seen fit to join in proving the Will, although the grant of probate reserves power to her to do so.
I should set out the provisions of clauses 3 through to 5 in full. Clause 6 (the final clause) simply provides that the trustees may exercise any or all of the powers and discretions conferred upon them at any time after the death of the testatrix, and whether or not probate of the Will has been granted, and whether or not administration of the estate has been completed.
Paragraph 3 reads as follows:
"I GIVE my freehold property known as 23 Alexandra Road Mold unto my son COLIN RYAN for his life he paying all rates taxes and other outgoings and keeping the same in good repair (fair wear and tear excepted) and insured against loss or damage by fire or other insurable risk to the full value thereof as my Trustees shall approve and after the death of my said son I GIVE the same unto My Daughter the said Jacqueline Gerling absolutely."
Clauses 4 and 5 provide as follows:
"I GIVE a one half share of the residue of my estate both real and personal to my said Daughter Jacqueline Gerling absolutely BUT IF she should not survive me for a period of 28 days then I DIRECT that her children (meaning a grandchild or grandchildren of mine) shall take by substitution and in equal shares if more than one the share of my estate which such deceased child of mine would have taken had she survived me and attained a vested interest.
5. MY TRUSTEES shall hold the remaining one half share of my residuary estate both real and personal (after payment from this one half share of all my debts and funeral and testamentary expenses) UPON TRUST (hereinafter called the "Trust Fund") with and subject to the powers and provisions hereinafter contained in addition to their powers and...
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