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Where two wrong wills can be right: Marley v Rawlings

By James Lister & Rebecca Piper Associates in the Contentious Trusts and Estates Team at Charles Russell LLP

The Supreme Court handed down a landmark judgment on 22 January 2014 (Lord Neuberger giving the judgment of the court in relation to the law in England & Wales and Lord Hodge in relation to Scotland) overturning the High Court and Court of Appeal’s decisions in the case of Marley v Rawlings [2014] UKSC 2.

THE FACTS

The case concerns the execution of the wills of Mr and Mrs Rawlings.  The married couple instructed their solicitor to prepare simple mirror wills for them, benefitting each other on first death, and Mr Marley (who they treated as an adopted son) on the death of the last to die.  Their wills had the effect of excluding their two biological sons, to whom they were not close.  When the solicitor visited the couple to execute the wills, he mistakenly handed Mr Rawlings’ will to his wife to sign, and vice versa.  The couple therefore inadvertently signed each other’s wills.

The mistake was not noticed until the death of Mr Rawlings in 2006, his wife having pre-deceased him in 2003.  The couple’s sons sought to challenge the validity of Mr Rawlings’ will, as if it were held to be invalid they would benefit through the intestacy rules.  Mr Marley commenced probate proceedings seeking to rectify the will and seeking probate to be granted of the rectified will.  At first instance, Proudman J dismissed Mr Marley’s claim on the grounds that (i) the will did not satisfy the formalities laid down in section 9 of the Wills Act 1837 (“the Wills Act”) and (ii) even if it had done so, it was not open to her to rectify the will (on the basis that the error was not one of a “clerical” nature) under section 20 Administration of Justice Act 1982 (“AJA”).

The Court of Appeal upheld Proudman J’s decision on the first ground (that the will failed to comply with the Wills Act formalities), and so found it unnecessary to consider the point on rectification. Mr Marley appealed to the Supreme Court.

THE SUPREME COURT’S DECISION

The Supreme Court has overturned the decision of the lower courts by a unanimous decision, finding that Mr Rawlings’ will did in fact satisfy the formalities of the Wills Act so as to be a “will” within the scope of section 20 AJA and that it could therefore be rectified so that it contains the typed parts of the will signed by Mrs Rawlings in place of the typed parts of the will signed by Mr Rawlings, thereby allowing the deceased couples’ testamentary wishes to come in to effect. 

POINTS FROM THE JUDGMENT:

1              The change in approach to the interpretation of wills – a move towards an intention based approach.

Previously there had been some divergence between the Courts’ approach on interpretation of wills compared to their approach on interpretation of contracts and other documentation - however Lord Neuberger has changed this approach stating that “when it comes to interpreting wills, it seems to me that the approach should be the same [as when interpreting contracts]…the aim is to indentify the intention of the party…by interpreting the words used in their documentary, factual and commercial context”. 

The intention of the testator on construction/rectification cases could now be crucial in interpreting whether and how a will needs to be rectified (the court should in effect put itself “in the armchair of the testator”).

 

 

2.            Application of Wills Act formalities to rectification claims under the AJA

The two sons sought to argue that the will could not be rectified under section 20 AJA as it was not a will at all as a result of its failure to satisfy section 9(a) and 9(b) of the Wills Act.  Lord Neuberger rejected this, finding that section 9 was concerned with formalities, not interpretation.  He was satisfied that section 9 had been complied with in this case stating that “as it was Mr Rawlings who signed it, it can only have been his will” and that “it was Mr Rawlings’ intention at the time he signed the will that it should have effect”.

Lord Neuberger acknowledged that unless the will was rectified it would not satisfy the requirements of full knowledge and approval of the will but did not view this as a bar to rectification, stating “It does not appear to me that a document has to satisfy the formal requirements of section 9, or of having the testators knowledge and approval, before it can be treated as a “will” which is capable of being rectified pursuant to section 20” and  ”I can see no reason why the word “will” in section 20(1) could not be read as meaning a document which, once it is rectified, is a valid will”.

3.            A wider approach to rectification.

Section 20(1) AJA 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 of (a) a clerical error or (b) a failure to understand his instructions, the court may order that the will can be rectified so as to carry out the testator’s intentions.

Lord Neuberger has sought to widen the circumstances in which this provision can be used in two respects:

The definition of ‘clerical error’

Since section 20 AJA came into effect it has been the commonly held position that the term “clerical error” had a relatively narrow meaning.  Blackburn J outlined the position in Bell v Georgiou [2002] EWHC 1080 (Ch): “the essence of the matter is that a clerical error occurs when someone…writes something which he did not intend to insert or omits something which he intended to insert”. 

The effect of the decision in Marley is to widen this definition to include “a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of, a document (save possibly, to the extent that the activity involves some special expertise)”.

The general approach of the Court

Lord Neuberger has stated that “it would appear appropriate that the grounds for rectification are as wide for wills as the words of section 20(1) can properly allow”.  This would seem to allow not only the widening of the use of “clerical error” as in Lord Neuberger’s judgment, but would seem to indicate that the Court generally favours a move away from the previous narrow approach and encouraging the use of section 20 AJA in a wider context.

THE FUTURE POST MARLEY

The previous position of the Court in relation to rectification of wills has been very strict and narrowly applied.  This of course brings certainty, although in some situations an unjust result.  It was clear that the lower Courts considering the matter were frustrated by the decision that they felt they had to reach and arguably this a further example of the Supreme Court working hard to find a way to “do the right thing”, as they did in the decision in Prest v Petrodel  [2013] UKSC 34 last year.

There is a possibly that the Court’s decision in Marley will open the floodgates to further claims of rectification as lawyers seek to explore and push the new boundaries for the definition of ‘clerical error’ and attempt to extend the scope of cases for rectification that can be brought under section 20.  This case has also muddied the waters in relation to the requirement of knowledge and approval of wills,  which was previously an established area of law – in particular the comments concerning knowledge and approval for a rectified will, before rectification, are likely to require some further exploration.

The Courts will need to be quick to stamp on attempts further to widen the scope of this decision in order to ensure that the outcome of this case is not taken beyond situations where wills need to be ‘saved’ due to a human error in preparing the will making them otherwise invalid or incorrect.

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