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• Author: Ranjeet Johal

New found flexibility in rectifying wills

Marley v Rawlings [2014] UKSC 2

The Supreme Court gave an important judgment on the ability of the Courts to rectify wills, under their statutory powers, in order to give effect to a testator’s intentions.

The facts of this case were fairly straightforward. Mr and Mrs Rawlings had instructed a solicitor to prepare for them mirror wills, whereby they left everything to each other. On the death of the second spouse, the entire estate was to pass to Mr Marley, who was treated as if he was their son. Unfortunately, due to an oversight which was not spotted by anyone, Mr and Mrs Rawlings ended up signing each other’s will.

Mrs Rawlings passed away first and her estate passed to Mr Rawlings without anyone noticing the mistake. When Mr Rawlings died, the mistake was noticed and the validity of his will was challenged by his sons. If the will was valid, everything would pass to Mr Marley. However, if the will was found to be invalid, his sons would inherit the estate (around £70,000) through the laws of intestacy.

The High Court had decided that the will was not valid as it did not satisfy the formalities imposed by s9 of the Wills Act 1837 (‘the 1837 Act’). Even if it was valid, the Judge ruled that s20 of the Administration of Justice Act 1982 (‘the 1982 Act’) did not give her wide enough powers to rectify the will. The Court of Appeal upheld the High Court’s decision that the will was not valid.

The matter came before the Supreme Court, which unanimously decided that the will could in fact be rectified. Lord Neuberger, giving the lead judgment with which the other members of the Supreme Court agreed, examined the development of rectification of documents generally before specifically considering the issues at hand.

Mr Marley’s claim that the will could be valid and effective on the grounds of correct interpretation was rejected. So too was his claim that by deleting the majority of the document it could be validated. However, the Supreme Court agreed with his argument that the will should be rectified to give regard to the Mr Rawlings’ true intentions.

Lord Neuberger considered that essentially rectifying the whole will was not too extreme. He stated that there was no reason in principle why a wholesale correction should be ruled out, and that to impose such a restriction on the Court’s powers would lead to uncertainty.

Lord Neuberger then dealt with the respondents’ argument that the will, as produced before the Court, did not fulfil the requirements of s9 of the 1837 Act, and so was therefore not a will and the remedy of rectification set out in s20 of the 1982 Act was not available. Lord Neuberger considered that although there was something seriously wrong with the will, Mr Rawlings had signed it with the intention of it being his last will and testament, and that it had been signed by him in the presence of two witnesses. It was therefore unambiguously intended to be a formal will and was so on its face.

Lord Neuberger went on to state that s9 was only concerned with formalities. He said that even if a will faced problems of interpretation, it did not mean that it could not satisfy the formal requirements. Furthermore, he said that s20 was created to have been of value and if it could not be used in these circumstances to make an informal will a valid one, it would be odd. He therefore held that the will was compliant with s9 and so the Court had the ability to use s20 to rectify the will.

Finally, Lord Neuberger deliberated on the meaning of “clerical error” in s20 and whether the facts of this unfortunate case could have been said to arise from a clerical error. He felt that the phrase should be given a wide meaning. This was because it was clear that the provisions of the 1982 Act were to make the law on wills more flexible and so this allowed him to take a broad interpretation. Lord Neuberger decided to give the phrase “clerical error” a wide enough meaning so as to cover the mistake in this case. Accordingly the will was rectified to give effect to Mr Rawlings’ true intentions.

This judgment could lead to more people seeking to challenge, uphold, amend or rectify wills given the relaxed approach adopted in this case to the question of the validity of a will, and also the wide meaning given to the phrase “clerical error”. The Supreme Court has certainly endorsed a much more flexible approach, thereby providing scope for more litigation. However, it is important to bear in mind that whether or not rectification of a will is to be granted by the Court will depend on the facts of each case.

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