Marley v Rawlings & anr [2014] WTLR 299

Analysis

Mr Alfred Rawlings and his wife Maureen Rawlings instructed a solicitor to draft their wills in mirror form. Each spouse intended to leave his or her entire estate to the survivor of them, but provided that, should the other have predeceased or survived them for less than a month, their estates should be left to the appellant, who was not related to them but whom they treated as their son. Mr and Mrs Rawlings’ solicitor attended them on 17 May 1999 to enable a due execution of draft wills containing these provisions. By an oversight, their solicitor gave each spouse the other’s draft will and accordingly Mr and Mrs Rawlings executed the wrong drafts.

Mrs Rawlings died in 2003 and her estate passed to Mr Rawlings without anyone noticing the mistake. However, when Mr Rawlings died in 2006 with some £70,000 left in his free estate, the error came to light and the respondents, Mr and Mrs Rawlings’ two sons, questioned the validity of their father’s purported will.

The appellant duly issued proceedings, which were heard by Mrs Justice Proudman. On the understanding that the appellant’s case was that Mr Rawlings’ purported will should be rectified so as to record what he had intended and that probate of the same should be granted to him in solemn form, Proudman J dismissed the appellant’s claim on the grounds that:

1. (i) the will did not satisfy the formalities required by s9 of the Wills Act 1837 (the 1837 Act); and
2. (ii) even if the will was valid, it was not open to her to rectify the script pursuant to s20 of the Administration of Justice Act 1982 (the 1982 Act).

On appeal, the Court of Appeal unanimously upheld the decision of Proudman J on the basis that s9 of the 1837 Act was not satisfied and therefore did not find it necessary to consider the question of rectification.

The appellant appealed to the Supreme Court on three grounds:

1. (i) that Mr Rawlings’ will properly construed should be read, in effect, as if it was the document executed by his late wife in May 1999;
2. (ii) the extent of Mr Rawlings’ knowledge and approval of the purported will was such that it could be validated, albeit with deletions; and
3. (iii) that the purported will should be rectified so as to accord with Mr Rawlings’ intentions.

Held (allowing the appeal and holding that the will should be rectified so that it contains the typed parts of the will signed by Mrs Rawlings in place of the typed parts of the will signed by Mr Rawlings):

1. (1) Equally applicable to the construction of wills, save where s21(1) of the 1982 Act applies, is the approach adopted by the courts in the interpretation of contracts, whether in respect of ordinary bilateral agreements or unilateral notices or even patents, namely by identifying the meaning of the relevant words:
   1. (a) in the light of:
      1. (i) the natural and ordinary meaning of those words;
      2. (ii) the overall purpose of the document;
      3. (iii) any other provisions of the document;
      4. (iv) the facts known or assumed by the parties at the time that the document was executed; and
      5. (v) common sense; but
   2. (b) ignoring subjective evidence of any party’s intentions.
2. Where s21(1) of the 1982 Act applies, this interpretation may be assisted by reference to evidence of the testator’s dispositive intent (such as communication with the will’s draftsman or others and of notes or such earlier drafts as are available to the court of construction).
3. (2) It was not necessary to decide the difficult question of whether a particular approach to will construction is one of interpretation or rectification on this appeal. The appellant relied primarily on the ground of rectification and so the majority judgment proceeds on the basis that the appeal fails on construction.
4. (3) The will, on a literal interpretation, plainly did not represent Mr Rawlings’ intentions and accordingly he cannot have known or approved its contents. In the circumstances it was inappropriate to invoke a principle of partial deletion in order to justify selecting phrases and provisions for deletion from a will intended to be signed by someone else, to enable the will, effectively by happenstance, to comply with the testator’s intentions. The proposed deletion in this case would involve converting a simple principle of severance into ‘a word game with haphazard outcomes’.
5. (4) This was a very clear case for rectification, given the certainty as to what Mr Rawlings intended and how he would have expressed himself, and none of the respondent’s objections to this exercise of the court’s jurisdiction were made out:
   1. (a) There may be force in a general proposition that the greater the extent of the correction sought, the steeper the task for a claimant seeking rectification. However, there is no reason, in principle, why a wholesale correction should not be permissible, and indeed to impose such a restriction would be unprincipled and lead to uncertainty.
   2. (b) The fact that a will may face problems in terms of interpretation or even validity does not mean that it cannot satisfy the formality requirements. Section 9 of the 1837 Act was satisfied – although the will purports in its opening lines to be the testament of another, as it was Mr Rawlings who signed it, it can only have been his will and there could be no doubt that it was Mr Rawlings’ intention at the time he signed the will that it should have effect as such.
   3. (c) Notwithstanding the finding of formal validity in this case, a document does not have to satisfy the formality requirements of s9 of the 1837 Act, or of having the testator’s knowledge and approval, before it can be treated as a ‘will’ which is capable of being rectified pursuant to s20 of the 1982 Act:
      1. (i) If s20 of the 1982 Act could not be invoked to rectify a document which was currently formally invalid into a formally valid will that would cut down its operation for no apparently sensible reason.
      2. (ii) It is consistent with ss17 and 21 of the 1982 Act, to deal with the validity and rectification issues together, at least in a case such as this, where the two issues are so closely related.
      3. (iii) As wills may be admitted to probate and subsequently construed by a court of construction to be of no operative effect, there is no objection to treating a document which purports to be a will as a will, even though it may subsequently turn out to be invalid.
      4. (iv) As a matter of statutory interpretation, reference to a will in s20 means any document which is on its face bona fide intended to be a will, and is not limited to a will that complies with the necessary formalities. Even if that were not right, there is no reason why the word ‘will’ in s20 could not be treated as meaning a document which, once rectified, is a valid will.
   4. (d) The error in this case was not within the narrower meaning of ‘clerical error’ as reflected in the effect of first instance authorities. However, s20(1)(a) should, for the following reasons, be given a wider meaning in future so as to cover mistakes of the kind evident in this case:
      1. (i) There is no apparent reason for a different rule for the rectification of wills and other documents, it is appropriate that the grounds are as wide as the words of s20(1) can properly allow.
      2. (ii) There is no limit on the applicability of s20(1)(b), supporting the notion that s20(1)(a) should not be treated as being of limited application.
      3. (iii) Sections 17 to 21 of the 1982 Act are aimed at making the law on wills more flexible and rendering it easier to validate wills.
      4. (iv) The law would be incoherent if subtle distinctions led to very different results in cases where the ultimate nature of the mistake is the same.
6. The two cases of, in the first place a solicitor accidently copying and pasting the terms of a different will into the testator’s will and, in the second where a solicitor accidently gives the wrong wills to testators are both properly considered ‘clerical errors’ because neither involve a misunderstanding of instructions or an error of law.
7. (5) Lord Hodge saw no reason why, if applicable, Scots law would not currently provide a remedy of partial reduction and declarator on the facts of this case.

JUDGMENT LORD NEUBERGER (with whom Lord Clarke, Lord Sumption and Lord Carnwath agree): [1] A husband and wife each executed the will which had been prepared for the other owing to an oversight on the part of their solicitor; the question which arises is whether the will of the husband, who died after his wife, …

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