Vincent Kelly v Mary Brennan
| Jurisdiction | England & Wales |
| Judge | Master Shuman |
| Judgment Date | 12 February 2020 |
| Neutral Citation | [2020] EWHC 245 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2018-000331 |
[2020] EWHC 245 (Ch)
Master Shuman
Case No: PT-2018-000331
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
Property Trusts and Probate (ChD)
In the Estate of Patrick Joseph Kelly Deceased
Rolls Building, Fetter Lane,
London. EC4A 1NL
Michael Bowmer (instructed by Beale & Company Solicitors LLP) for the Claimant
Third Defendant in person Joshua Lewison ( direct access) for the Fourth Defendant
Hearing dates: 23 August 2019, 12 September 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is a claim for rectification of the will of Patrick Joseph Kelly (“the deceased”) dated 5 July 2010 (“the 2010 will”). It is made pursuant to section 20(1)(a) of the Administration of Justice Act 1982 (“the 1982 Act”). As six months has expired between the claimant being granted probate on 7 November 2014 and the claim being issued on 1 May 2018 the claimant also requires permission under section 20(2) of the 1982 Act to bring the claim. The claim is opposed by the third and fourth defendants.
The 2010 will currently divides the residue of the deceased's estate into 10 equal shares. Vincent's case is that this is a clerical error as the deceased intended to divide the residue into 6 equal shares between his siblings and, as his sister had already died, he intended to divide her one-sixth share between her 5 children.
THE PROCEEDINGS
The claimant (“Vincent”) is bringing this claim in his capacity as a beneficiary under the 2010 will; although he is also the executor under the 2010 will. He is one of the brothers of the deceased. The claim is brought by Part 8 claim form.
Vincent relies on the following evidence: his two witness statements dated 27 June 2018 and 11 January 2019; a statement from David Osborne, solicitor, dated 21 February 2018; and a statement from Brona Osborne dated 21 February 2018.
The defendants are the adult children of the deceased's late sister, Maureen, also known as Mary. The defendants instructed O'Doherty Warren solicitors (“ODW”) based in County Wexford, Ireland. They initially said that the claim was contested and that the defendants would be consulting with their English appointed agents. The third defendant, (“Fergus”), and the fourth defendant, (“Vincent B”) both served acknowledgements of service contesting the claim. The first, second and fifth defendants did not. They have played no active part in the proceedings. On 31 July 2018 Osbornes Law (“Osbornes”), acting on behalf of the defendants, wrote to Beale & Company (“Beale”), who act for Vincent, stating that the defendants no longer wished to contest the claim and “that it is agreed that the estate administration can proceed in accordance with the claimant's application”.
The claim was listed for a disposal hearing on 1 November 2018 but Fergus and Vincent B attended in person seeking permission to rely on witness statements, served shortly before the hearing. They indicated that their case was that the deceased had intended the gifts to be in the form set out in the 2010 will and that the deceased was domiciled in Ireland not England. I granted them permission to file and serve witness statements addressing specifically the following issues: (i) the deceased's domicile, (ii) why they contended that the 2010 will did not contain a clerical error and should not be rectified; and (iii) why the court should not grant permission for the claim to be made under section 20(2) of the 1982 Act.
Fergus filed a one page affidavit sworn on 3 December 2018. Vincent B filed a 4 page statement with two exhibits sworn on 3 December 2018. This evidence did not adequately address the first or second issues.
THE FACTUAL MATRIX AND THE WILLS
I take the factual background primarily from Vincent's witness statements and the documents, where relevant, exhibited to the statements. Neither Fergus nor Vincent B have put in evidence to challenge the factual account given by Vincent.
The deceased was born on 4 February 1934 in the Irish Republic. He was one of 9 children. His siblings were Vincent, Kevin, Michael, John, James (known as Jim), Eileen and Maureen (known as Mary). The deceased never married and had no children.
In the early 1970's the deceased moved to England and never returned to live in Ireland. He would occasionally visit his siblings in Ireland. He was a joiner until his retirement in 1992.
On 18 August 2006 the deceased had a meeting with David Osborne a solicitor at R A Osborne & Son (“RAO”) to give will instructions. The deceased and his family were long standing clients of RAO, usually instructing Cyril Osborne, David's father.
David Osborne's contemporaneous notes record that the deceased had made a will “many years ago with Cyril”. In August 2006 the deceased was living at 31 Auriol Road, West Kensington, London W14 05P. He was a retired joiner and in receipt of a state pension in England and a small state pension in Ireland from the time that he undertook an apprenticeship. He held substantial assets with Barclays Bank plc in London, whom he had banked with since 1976. He also owned a property known as the Woodlands. He had 6 living siblings, James and Maureen having already passed away. The deceased instructed David Osborne to prepare a will dividing his estate between his surviving siblings. He did not wish some of his family members to inherit as he considered them to be “gamblers or spenders”. The notes also record,
“Discussed residency and taxes in Ireland.
… He has a tax no. in England but not in Ireland”.
On 18 August 2006 the deceased executed a will dividing his estate as instructed (“the 2006 will”). The 2006 will starts with the deceased's name and then states, “of Woodlands, Castledermot, County Kildare”.
On 6 January 2009 the deceased was granted a lease of the ground floor flat, 53 Mablethorpe Road, Fulham SW6 6AQ (“the flat”) by the Mayor and Burgesses of the London Borough of Hammersmith and Fulham for a term of 125 years from 29 September 2008. The premium paid was £220,000.
There was a family home at Woodlands, Castledermot, County Kildare which was bequeathed to the deceased by his parents; he was the only unmarried child. In 2010 the deceased sold the property. He told Vincent that as his mother had died there he would never live in it and moreover had no intention of returning to live in Ireland. He retained some of the lands near to the family home in Plunketstown Lower, Castledermot. There was an uninhabitable cottage on that land which he bequeathed to his nephews, Paul and Daniel, in the 2010 will.
On 5 July 2010 the deceased had a meeting at RAO, this time with Cyril Osborne, to give instructions to make a new will. Cyril Osborne's practice was to make a handwritten note during the meeting and then type up an attendance note.
Cyril Osborne's contemporaneous notes record that the residue was 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.”
On 5 July 2010 will was executed by the deceased and witnessed by Cyril Osborne and his daughter Brona Osborne.
The 2010 will provided as follows:
i) Michael and Vincent were appointed as executors;
ii) the deceased's house and land at Plunketstown Lower was left to his nephews Paul and Daniel in equal shares (Vincent's sons);
iii) the residue including any assets in the United Kingdom were bequeathed to,
“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.”
The 2010 will gives the name of the deceased and then says of Plunketstown Lower, Casteldermot in the County of Kildare.
On 9 June 2014 the deceased died aged 80 years. His death certificate records that his usual address was the flat but that he died at Norbury Hall, 55 Craignish Avenue, Norbury, SW16. I am told that this is a care home that he had moved to on 27 November 2013. The Inland Revenue affidavit dated 21 December 2015, sworn by Vincent, states that the deceased's domicile of origin was Ireland but that his domicile at death was England.
The deceased's estate in Ireland had a value of €80,786 after funeral and testamentary expenses. The estate comprised the land and bungalow with a value of €75,000 and two bank accounts. The deceased's estate in England had a net value after testamentary debts of €2,073,154. It included the flat with a value of €693,000, bank accounts with Barclays Bank plc with balances of €217,178, a share portfolio held by Barclays Bank plc €574,555, and investment bond with Legal & General €649,508.
Vincent as executor instructed Hubbard Pegman & Whitney LLP (“HPW”), solicitors in London. On 7 November 2014 there was a grant of probate to Vincent with power reserved to another executor. The grant was extracted by HPW. The net value of the estate was £1,642,080. The grant records that the deceased was domiciled in England...
To continue reading
Request your trial
-
Table of Cases
...486 (Ch), [2013] WTLR 859 116, 120 Jump v Lister [2016] EWHC 2160 (Ch), [2017] WTLR 61 115, 228 Kelly v Brennan; Kelly (Deceased), Re [2020] EWHC 245 (Ch), [2021] WTLR 613, [2020] 2 P & CR DG5 121–122, 127 Kennard v Adams (1975) The Times , 29 November 45 Kensington v Unrepresented Non-allo......
-
Rectification
...Channel Islands and the Isle of Man, and Slattery and Jagger v Jagger and Others [2015] EWHC 3976 (Ch). In Kelly v Brennan and Others [2020] EWHC 245 (Ch), the testator had instructed his solicitors that he wanted his estate to be divided between the testator’s five siblings and five adult ......