Do we need more judicial discretion in disputes over wills?

Charles Dickens was not a champion of the Chancery Courts. In Bleak House his withering analysis warned “suffer any wrong that can be done to you rather than come here”. Bleak House focused on the case of Jarndyce v Jarndyce and a dispute in relation to a will. However, there is a strong argument that greater judicial intervention would prevent manifest unfairness and costs.

Applying force

The law of England and Wales is built on the bedrock of freedom of testamentary disposition, the idea that a person is free to leave his estate to whomever he wishes on his death. However, as with all laws, there must be flexibility to prevent unfairness. This has been dealt with by statute in: the Inheritance (Provision for Family & Dependants) Act 1975, which allows certain categories of applicants to claim against an estate where they have not been reasonably financially provided for in a will or in intestacy; and the Administration of Justice Act 1982, which provides for the amendment of wills should they fail to carry out the testator’s intentions in consequence of a clerical error or a failure to understand the testator’s instructions.

The courts have also addressed (perceived) unfairness in relation to the equitable doctrine of proprietary estoppel, which has expanded significantly in recent years.

In Marley v Rawlings [2011], Mr ?and Mrs Rawlings had intended their estates to pass to Terry Marley who ?they treated as their adoptive son. ?Mr and Mrs Rawlings did not wish to benefit their natural children with whom they did not enjoy a close relationship. But sadly they signed the wrong wills ?in the presence of a solicitor and secretary; an error that was not picked up until after both deaths. Marley ?sought to rectify by the wills on the ?basis of the clerical error.

It was common ground that Mr and Mrs Rawlings had intended Marley to inherit. It was argued on behalf of Marley that the purpose of the court was to give effect to the true wishes of a testator when evidence is plain that a mistake has been made.

Cause and effect

The court adopted a narrow approach in rejecting the submissions in favour of rectification. The court held that the signature on a wrong will was in contradiction to section 9 of the Wills Act 1837, which provides that the will: is in writing and signed by the testator, or by some other person in his presence and by his direction; and it appears that the testator intended by his signature to give effect to ?the will.

The effect of the judgment is that, as in Bleak House, further litigation will inevitably result. It was understood that Marley was pursuing a professional negligence claim against the solicitors who were responsible for the error. It may also be that Marley is obliged to pursue a claim under the Inheritance (Provision for Family & Dependants) Act 1975 in mitigation.

In delivering the judgment, Mrs Justice Proudman felt bound by the inflexibility of the law and the lack of judicial discretion such that she stated:?“I can only echo Sir James Hannen and say that, much as I regret the blunder, ?I cannot repair it.”

The court was referred to the authority of Re Hendrikus Ignatius Hennekan Deceased [2009], presided in the Supreme Court of Australia. In considering the judgment, Mrs Justice Proundman stated: “In Australia the relevant statutory provisions are different in two important respects. First, a will may be admitted to probate even if it has not been executed in accordance with the prescribed formalities, provided that the court is satisfied of the deceased’s intention that the document should constitute his will. Secondly, the statute confers a wide power of rectification to give proper expression to the deceased’s testamentary intentions.”

It is time for the law to be amended to give the courts greater discretion in order to correct manifest unfairness.