Will-writing warning: get the basics right

The case of Marley v Rawlings and another [2012] EWCA Civ 61 underlines the importance of compliance with the requirements of section 9 of the Wills Act 1837 (WA). The Court of Appeal upheld the High Court's decision that a mirror will signed by the wrong spouse is invalid.

Mr and Mrs Rawlings each made mirror wills leaving everything to one another. They had two sons but took the decision not to benefit them as they did not have a close relationship. Instead, they decided that the survivor would leave their estate to Terry Marley, whom they thought of as their 'adopted son'. The wills were prepared by a solicitor. Unfortunately, Mr and Mrs Rawlings each signed the will that had been prepared in the name of the other by mistake.

Mrs Rawlings died and the mistake went unnoticed. The error came to light on the death of Mr Rawlings, when his sons challenged the validity of will.

The High Court held that Mr Rawlings' will could not be admitted to probate as it did not comply with the requirements set out in section 9 WA 1837. Section 9 states (among other things) that:

• a will must be in writing;
• it must be signed by the testator; and
• the testator must intend his signature to give effect to the will.

The Court of Appeal held that there was a question over whether the will had been signed 'by the testator' at all, given that the will actually signed by Mr Rawlings expressed itself to be that of his wife.

Mr Marley further argued that Mr Rawlings had intended to give effect to the will by signing it. While the Court of Appeal accepted that Mr Rawlings intended to give effect to a will, it rejected the argument that this intention could be extended to the will that he actually signed being that of his wife. This point was summed up succinctly by Proudman LJ in the High Court: 'If they had asked Mr Rawlings whether he intended to give effect to the will that he signed, he would not have replied 'Yes, subject to the correction of errors,' but rather, 'No, of course not, that is my wife's will'.' It is hard to argue otherwise.

Mr Marley brought a claim for rectification of Mr Rawlings' will under section 20 of the Administration of Justice Act 1982 (AJA). He claimed that the wording of the will could simply be changed, replacing certain words so that the will read as Mr Rawlings had intended.

Section 20 AJA 1982 gives the courts power to rectify wills where the drafter has made a clerical error or failed to understand the testator's instructions. The High Court rejected rectification in the first instance because the error did not concern the wording of the will but rather had arisen from the fact that the wrong person had signed it.

The Court of Appeal did not consider the rectification point in any detail because, in order for a will to be rectified, it must be valid in the first place. It had been established that Mr Rawlings' will was invalid and therefore rectification was not available. Black LJ explained that the key point was that no matter how alike the contents of the will may have been to Mr Rawlings' intentions, the will could never be his. In reality, Mr Rawlings had signed a will that gifted his entire estate to himself. In any event, the Court of Appeal identified that Rawlings was wholly different to a case where the testator signs his own will but that will contains a mistake.

In the end the entire estate passed to Mr Rawlings' sons under the intestacy rules.

Irreversible damage

No one would argue that there is any ambiguity surrounding Mr Rawlings' intentions. It is clear that he wanted to leave his estate to his wife, failing which, to Mr Marley. It is easy to feel sympathy for Mr Rawlings here; he died believing that Mr Marley would receive his estate. This was echoed by Proudman LJ in the High Court with her comment: 'Much as I regret the blunder, I cannot repair it.'

The requirements of section 9 are basic and perhaps this creates a danger that will writers could become blasé in dealing with execution. However, Rawlings is a reminder of how crucial these basic requirements are. The case also confirms that a testator must intend to give effect to the specific will that he signs.

Interestingly, the solicitor who prepared Mr and Mrs Rawlings' wills attended on them at home and witnessed the execution of the wills along with a colleague. Clearly the error was not picked up when the wills were checked (if, indeed, they were).

The net value of Mr Rawlings' estate was £70,000. The legal costs incurred by the parties in dealing with the original case and subsequent appeal must have by now exceeded this sum. This is not to mention the distress that has likely been suffered by all concerned.

Further, Mr Marley is likely to be advised to bring a claim in negligence against the solicitor who drafted the wills. Indeed, the judgment confirms that in the event that the appeal is unsuccessful, Mr Marley will look to Mr and Mrs Rawlings' solicitor for damages. The principle that a solicitor can be liable to a disappointed beneficiary was confirmed by the House of Lords in White v Jones [1995] UKHL 5. Here, a solicitor took will instructions but delayed in drafting the document itself, during which time the intended testator died. The solicitor was held to be liable to the disappointed beneficiary for the loss of legacy.

It is possible that Mr Marley will pursue a claim under the Inheritance (Provision for Family and Dependants) Act 1975 in mitigation although it is not clear whether or not he would qualify as an eligible claimant. Whatever course it takes, it is almost certain that further litigation will ensue and that the costs incurred will escalate further.

Rawlings has also confirmed the scope for rectification of a will and makes clear that section 20 does not provide a solution to defective execution. This really hammers home the importance of checking a will after execution. A few minutes' work could save a potentially expensive professional negligence claim further down the line. It is unclear whether a will was admitted to probate on Mrs Rawlings' death but, if so, it appears that the error was missed for a second time, thus compounding it. Had the error been picked up on Mrs Rawlings' death then Mr Rawlings could have executed a new will and the whole problem could have been avoided.

Court flexibility

Rawlings also reignites the debate as to how much discretion the courts should have in dealing with will disputes.

On the one hand, the law needs to be certain. Will writing is an important issue and testators must feel assured that, provided that they comply with the set rules, their wishes will be carried out. Too much flexibility would create uncertainty.

On the other hand, the courts have been forced to disregard Mr Rawlings' clear intentions. The law already allows for some discretion in will disputes (for example, the Inheritance (Provision for Family and Dependants) Act 1975 and section 20 AJA 1982 itself). Perhaps it is time to look at extending these powers. Certain other jurisdictions do afford greater judicial discretion. For example, the New Zealand Court of Appeal allowed a will to be admitted to probate with the omission of the testatrix's name (Guardian Trust and Executors Company of New Zealand Ltd v Inwood and Others [1946] NZLR 614).

Despite agreeing with Black LJ's ruling, in his judgment Sir Anthony May referred to section 20 AJA 1982 and stated that 'there are powerful arguments for the section to be given a wide and generous scope where the issue arises'. Of course, as the will was invalid, the rectification point was a non-starter, but it would have been interesting to hear what else Black LJ might have had to say on this point.

There really is no excuse for defective execution. Wills must be carefully checked. If they are not, the door is left open to a negligence claim.