Widening the margin of error

A testator's 'intention' is paramount when interpreting a will and rectification can be used to correct a clerical error, even if that involves rewriting the entire testamentary document. The Supreme Court's recent ruling in the case of Marley v Rawlings has shown that.

Alfred and Maureen Rawlings made mirror wills in 1999, each leaving everything to the other on the first death and then to Terry Marley on the second death. Marley had lived with the couple since 1975 and had cared for them in their later years. Although he was never formally adopted, he was treated as a son by the family. The Rawlings' two biological sons, from whom they were estranged, were effectively disinherited from their parents' estate.

The couple's solicitor and his secretary attended their home to deal with the execution of the wills. However, the documents were switched in error prior to signature, so Alfred and Maureen signed each other's will, witnessed by the solicitor and his secretary, who didn't register the error at the time. The mistake was not noticed until after Alfred died in 2006.

This seemingly simple error had enormous consequences. Legally, it could have meant that, if Alfred's will was invalid, the couple would have died intestate. Consequently, Terry had been the couple's sole carer until they died and it was their clear intention to reward him financially from their estate, because of the application of the intestacy rules, the Rawlings' biological sons would have inherited everything in equal shares.

Marley applied to the High Court requesting that the will be rectified under s20 of the Administration of Justice Act 1982. Such an application may be made where it can be shown that a will cannot be proved because of a clerical error. The High Court, however, concentrated on whether the will was valid under s9 of the Wills Act 1837, which sets out that a will must be in writing and signed by the testator or by some other person in their presence and by their direction, and it appears that the testator intended by their signature to give effect to the will.

The will failed as it had not satisfied the requirements of s9(b) of the 1837 Act on the assumption that the testator could not have intended to give effect to the will because it was his wife's and not his. The High Court applied a very narrow and strict interpretation of the legislation and ruled that the requirements of s9 must be satisfied before considering rectification under s20.

The court commented on s20 of the 1982 Act in relation to the definition of a clerical error. It ruled that as the error in this case was a drafting one, the judges could not extend the definition beyond the wording of the will, as it perfectly expressed the testator's wishes, it just did not bear his signature. In my view, the High Court followed the clear principles well established in case law in this area.

The case then went to the Court of Appeal. Black LJ in his judgment dismissing the appeal said: "I find it very difficult to conceive of a set of circumstances in which rectification ordered under section 20 could enable an otherwise invalid would-be will to satisfy the requirements of section 9 without rocking the very foundations of that section at the same time."

While it was agreed that Alfred intended to give effect when he signed the document in front of him, he did not intend to give effect to the will he actually signed. In dismissing the appeal, Kitchin LJ went as far as saying he had reached his conclusion "with regret". Again, the Court of Appeal took a very rigid stance on the issues raised in this case.

Generous law

The Supreme Court took a very different approach to this case than the lower courts. In the judgment given on 22 January 2014, eight years after Alfred's death, all five judges upheld Marley's appeal.

The lead judgment was given by the President of the Supreme Court, Lord Neuberger. He took the view that the law had been very generous over the last 40 years in fixing mistakes in commercial contracts. He saw no reason why it shouldn't be the same for wills. The intention of the parties was paramount and involved a common sense approach by looking at all the available evidence. This commercial approach, which until now has not applied to cases involving wills, represents a clear break with tradition and should be welcomed.

In conclusion, the court said there had clearly been a mistake in this case, but the question was whether it could be said to be 'clerical'. Lord Neuberger said that where there was a clerical error, it could be rectified even if it involved rewriting the entire document. So there was no reason why all the wording in the will drafted for Maureen, which had been signed by her husband, could not be replaced by the wording in the will drafted for Alfred. The views expressed by Lord Neuberger went further than any practitioner in this area would have anticipated.

Lord Neuberger was clear that the expression 'clerical error' should be given a wide rather than a narrow meaning. The term 'clerical error' can, as a matter of ordinary language, quite properly encompass the error involved in this case. There was a mistake, and it can be fairly characterised as clerical because it arose in connection with office work of a routine nature. The will could therefore be rectified under s20 and Marley would inherit from the Rawlings.

The judgment is interesting to practitioners as it was widely thought that the concept of 'clerical error' was limited to typing errors. Previously, many practitioners would not have contemplated bringing a case for rectification where a clerical error extended beyond a simple typing mistake, or the transposing of names inadvertently in a will. The concept of a clerical error has now been extended to include mistakes arising from routine office work, such as preparing, filing, sending and organising the actual execution of a will.

Fundamentally, the main driver behind the judgment was the court's commercial outlook in identifying the 'intention' of the testator. However, has the Supreme Court in its desire to 'do the right thing' opened the floodgates to future litigation? The judgment may create an area of uncertainty as the previous notion of a very rigid application of 'clerical error' has been blown away.

Litigation prevalence

Where administrative mistakes arise in the execution of a will in the future, it is clear that the guiding principle of the courts will be the intention of the deceased. In this case, the intention of Alfred was self-evident. But what will happen if it is not so clear cut? The courts will need to look at all of the available evidence. Is the testator's intention, however, always obvious? It clearly was in this case, but may not be going forward. It is a timely reminder of why practitioners should make detailed file notes when taking instructions from clients.

Contentious probate cases have become increasingly prevalent in recent years, with disaffected relatives more willing than ever to challenge a will. But when a testator is dead, it is very difficult to establish their intentions if these are not clear from a file note or other evidence should the will be challenged.

While cases about mistakes are rare, as Marley v Rawlings demonstrates, they can be disruptive to families and costly to overseeing practitioners. Given the facts of this case, it is unlikely there will be many similar ones. But it is likely that the commercialism adopted by Lord Neuberger will lead to future cases that test this new-found approach.

Matthew Duncan is head of private client at Kingsley Napley

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