Will rectification: an area on the mend

Twice before I have written for this Solicitors Journal bemoaning the existing law as regards will rectification. Now, following Lord Neuberger's judgment in Marley v Rawlings [2014] UKSC 2, it is time to celebrate the first step towards fixing some of the problems in this area.

Lord Neuberger's judgment extends will rectification beyond that intended by statute, undermines cases refusing rectification for legal mistakes and argues for a rule making will rectification equivalent to rectification of other documents. While others have criticised Lord Neuberger for stepping outside proper judicial margins I applaud him and the rest of the Supreme Court. They have taken on responsibility shrugged by others and not only made a logical extension of the law but also started a process which will eventually, whether by judicial or legislative intervention, mean will rectification is brought into line with other documents.

In Marley a husband and wife wished to make mirror wills. The wills were drafted but, by mistake, the husband executed the will intended for the wife and she executed the will intended for the husband. Rectification of the husband's will was refused by Proudman J and this was upheld by the Court of Appeal. The Supreme Court, however, allowed rectification on the basis that this was a 'clerical error' coming within section 20 of the 1982 Administration of Justice Act.

Minor slips

In all likelihood when the words 'clerical error' were inserted in the legislation it was envisioned this would cover minor slips or typos and not situations where the wrong will was signed. However, the Supreme Court reasoned that on a broad interpretation mistakenly giving somebody the wrong document in an office environment might be said to have been a clerical error and that therefore rectification was permitted.

The problem is where to draw the line. Thus, if instead of being given his wife's will the husband in Marley had been given a third party's will or a completely unrelated attested document then, following Marley's logic, this document could in theory be rectified into a valid will. Many people, include Proudman J, are uncomfortable with such a wholehearted rectification. I appreciate such rectification sits uncomfortably with the formality of wills but if it ensures the testator's intentions are met then, though it is a broad extension, it is a good extension.

The real controversy from Marley is that many of Lord Neuberger's comments go far beyond previous limitations placed on will rectification and indicate a move towards a rule whereby will rectification is governed not by section 20 but by the general rules of rectification. Thus, Lord Neuberger states that he would have held that common law contained a power to rectify a will in the same way as any other document. This is completely unprecedented - it was always accepted that there was no inherent power to rectify a will prior to 1982 but Lord Neuberger suggests that not only was there such a power but that it was broader than the current statutory power.

Even when Lord Neuberger later accepts that he should not rely on the inherent power, he clearly chooses words which were designed to leave the door open for the future use of this power. "It would be wrong for any court to hold, at least in the absence of a compelling reason, that it actually had an inherent power which was wider than [section 20], he said". This means that in a future case with compelling reasons a court could be persuaded to rectify a will even though it fell totally outside section 20.

Unstable basis

Lord Neuberger also states that the law should not draw distinctions between different types of 'silly mistakes' by solicitors which do not alter the intentions of the testator and allow rectification in some and not others. These comments, together with the general tenor of the judgment leave cases which refused rectification on the ground of a legal mistake by a solicitor on a thoroughly unstable basis.

Refusing rectification where a solicitor has thought about a provision and inserted it (e.g. Kell v Jones) but allowing it (under Re Segelman authority) where he did not apply his mind properly to the same provision is exactly the sort of distinction which Lord Neuberger criticised as "capricious or arbitrary" as the contents of the will and the actions and intentions of the testator are identical in both cases.

Lord Neuberger stated "there is no apparent reason for a different rule" between rectification of wills and other documents and, in my view, the law must be changed to reflect that. Lord Neuberger's comments will hopefully provide the judicial spur for legislative change or the change may be made judicially by relying on this newly discovered potential common law power of rectification. Either way, a change is coming and I, for one, am glad.

Kevin Shannon is a barrister at Ten Old Square

www.tenoldsquare.com

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