Analysis
Alfred Thomas Rawlings (H) and Maureen Catherine Rawlings (W) were husband and wife who, on 17 May 1999, signed mirror wills leaving their entire estate to each other or, if the other failed to survive, to the appellant who was treated as their son. The respondents, who were their natural sons, were excluded but stood to benefit on intestacy if the wills were invalid. In the event, by mistake H signed W’s will and W signed H’s will but the error was not noticed then, or on the death of W. It was only noticed after the death of H in August 2006 when a dispute arose as to whether the estate should pass to the appellant or to the respondents. There was no doubt as to what H & W wanted to achieve and the appellant sought rectification on the basis that there had been a clerical error. Proudman J dismissed the claim on 3 February 2011, holding that s9(b) of the Wills Act 1837 provided a complete answer: H had not intended by his signature to give effect to the will that he had signed. In any case, rectification was not available because the error did not relate to the wording of the will, which was correctly expressed, but had been signed by the wrong person. The appellant appealed.
Held (dismissing the appeal):
Section 9(b) of the Wills Act 1837 had not been satisfied in this case because, while he may have intended to give effect to a will, H did not, by his signature, authenticate the document in question as his will nor did he intend the document, which he had signed to operate as his will. What appears from the face of the will is that H cannot have intended to give effect to what was written as his will because it was his wife’s. Had he been asked, as Proudman J had observed, he would have said that it was not his will, but his wife’s. This case was in a different class to those wills of testators containing errors that can be corrected by construction, omission or rectification and the development of the law had not removed the force of the authorities Re Hunt and Re Meyer. None of the overseas authorities were persuasive. Indeed, they had to be approached with caution given the differing provisions of the law in the various jurisdictions and the lack of judicial unanimity (some favouring a facilitative approach and some relying on ‘substantive compliance’ type legislation). Additionally, there was (per Black LJ) a real question as to whether the will, drawn up for W, had been signed by ‘the testator’ as required by subsection 9(a) because the obvious person to be described as such was W, not H.
Obiter: the question whether the document which had been signed was formally valid as a will had to be determined before any consideration could be given to rectification. The function of s9 of the Wills Act 1837 was directed at form whereas s20 of the Administration of Justice Act 1982 was directed at substance, and the word ‘will’ in the latter context referred to a valid, not would-be, will.
JUDGMENT JUDGMENTBLACK LJ: [1] On 17 May 1999 a married couple, Alfred Thomas Rawlings and Maureen Catherine Rawlings, had an appointment with their solicitor at their home for the purpose of executing the wills that he had drafted for them. The wills were very short and, except for the obvious differences necessary to reflect the …Continue reading "Marley v Rawlings & anr [2012] WTLR 639"