The UK Supreme Court has held in Marley v Rawlings and another [2014] UKSC 2 that a mirror will signed by the wrong spouse can be rectified under section 20(1)(a) of the Administration of Justice Act 1982, on the basis that the solicitor who handed the wrong will to each spouse to sign made a ‘clerical error’. In doing so their Lordships have pulled a rabbit from the judicial hat in spectacular fashion.

Formalities for Executing Wills

The well known formalities for executing a will are set out in Section 9, Wills Act 1837:

• The will must be in writing and the testator must sign it, or another person must sign it in his presence and at his direction.(s.9(a))
• It must appear that the testator intended by his signature to give effect to the will (s.9(b))
• The signature must be either made or acknowledged in the presence of at least two witnesses present at the same time.
• Each witness must sign the will, or acknowledge his signature, in the presence of the testator (but not necessarily in the presence of any other witness).

The Court’s Powers to Rectify & Interpret Wills

The court has power under s 20, Administration of Justice Act 1982:

To rectify a will if the will is so expressed that it fails to carry out the testator’s intentions because of one of the following:

• A clerical error; or
• A failure to understand his instructions.

Under section 21 of the same Act the Court is permitted; in so far as the will is meaningless or ambiguous, to admit extrinsic evidence, including evidence of the testator’s intention, to assist in the interpretation of the will.

Facts in the Marley v Rawlings

Mr and Mrs Rawlings made mirror wills, leaving everything to one another on the first death and everything to a man called Terry Marley on the second death. They treated Mr Marley as their adopted son. They had two natural children, Terry and Michael Rawlings, but were not close to them.

Mr and Mrs Rawlings signed their wills in the presence of their solicitor and his secretary, who witnessed the wills. Nobody noticed that each had signed the will of the other by mistake.

The error did not come to light until the second death, that of Mr Rawlings. It’s not clear whether any will was ever admitted to probate when Mrs Rawlings died.

Mr Marley applied to the court to rectify Mr Rawlings’ will under section 20 of AJA 1982. The claim was defended by Terry and Michael Rawlings, who would inherit their father’s estate in the event of an intestacy. If the claim failed, Mr Marley would have a claim against Mr and Mrs Rawlings’ solicitors in negligence on a White v Jones basis.

Procedural History of the Case

Mr Marley began probate proceedings, which came before Proudman J.

She gave a judgment based on the understanding that his case was that Mr Rawlings’s will (‘the Will’) should be rectified so as to record what he had intended, i.e. so as to contain what was in the will signed by his wife (‘the wife’s Will’), and that probate should be granted of the Will as so rectified.

Proudman J dismissed Mr Marley’s claim, on the grounds that:

• the Will did not satisfy the requirements of section 9 of the Wills Act 1837, and
• even if it had been section 9 compliant, it was not open to her to rectify the Will under s20 Administration of Justice Act 1982 because what had gone wrong was neither a clerical error or a resulted from failure to understand Mr Rawlings’ instructions

Mr Marley appealed to the Court of Appeal, who upheld Proudman J’s decision on the first ground, namely that the will did not satisfy section 9(b) of the 1837 Act. The Court of Appeal said that although Mr Rawlings had intended to give effect to a will, he had not intended to give effect to the will that he had signed. They did not find it necessary to consider the rectification ground on which Proudman J had declined to save the will.

Foreign Case Law Distinguished at First Instance

Proudman J reviewed a number of decisions in which courts outside England and Wales had upheld wills in similar circumstances. These included decisions of:

• The New Zealand Court of Appeal – Guardian Trust and Executors Company of New Zealand Ltd v Inwood and others [1946] NZLR 614, which had been followed by the Candian British Columbia Supreme Court and two District Courts  in Re Brander [1952] 6 WWR (NS) 702; Re Knott Estate [1959] 27 WWR (Alberta) 382 and Re Bohachewski Estate [1967] 60 WWR (Saskatchewan) 635.
• The Royal Court of Jersey – Re Vautier 2000 JLR 351.
• The Supreme Court of Australia – Re Hendrikus Igantius Hennekam deceased [2009] SASC 188.

However, she distinguished these cases as a useful guide because:

• The opinion of the Jersey court that section 20 of AJA 1982 overcame the difficulties with rectification in this situation was per incuriam (by error of the court), as the point was not argued in detail.
• She did not agree with the reasoning of the New Zealand court. In particular, the difference between signing the wrong will and signing a carbon copy of one’s own will was not a difference of degree rather than of substance: what mattered was not the piece of paper but the words recording the testamentary intention.
• In Australia, the relevant statutory provisions were different in two respects:
  • A will that did not meet the formalities for execution could be admitted to probate if the court was satisfied that the deceased intended the document to constitute his will; and
  • The court had a wide power of rectification to give expression to the deceased’s testamentary intentions.
  • In Hennekam, the court had admitted a will to probate that was prepared for the testator but not the will that he had actually signed in error.

Supreme Court’s Analysis

The Supreme Court’s judgment is unanimous, lead by the President Lord Neuberger, Lords Clarke, Sumption and Carnwath (with a Scottish postscript from Lord Hodge) delivered a joint judgment. The issue before their Lordships was whether what was being sought by Mr Marley to uphold Mr Rawlings’ will amounted to rectification or interpretation?

If it was a question of interpretation, then the document that purported to be Mr Rawlings’ will has, and has always had, the meaning and effect as determined by the court, and that would be the end of the matter. On the other hand, if it was a question of rectification, then the purported will, as rectified, would have a different meaning from that which it appeared to have on its face, and the court would have jurisdiction to refuse rectification or to grant it on terms.

Interpretation / Construction

The Supreme Court’s analysis of a Courts power to construe a document drew upon established English case law about the interpretation of commercial contracts. Whether the document is bilateral (like a contract) or unilateral (like a will or patent), the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words;

• in the light of:
  • the natural and ordinary meaning of those words,
  • the overall purpose of the document,
  • any other provisions of the document,
  • the facts known or assumed by the parties at the time that the document was executed, and
  • common sense, but
• ignoring subjective evidence of any party’s intentions.

On the scope of section 21 of the 1982 Act the Supreme Court held that where section 21(1) applies, a will is to be interpreted in the same way as any other document, but, in addition, in relation to a will, it is possible to assist its interpretation by reference to evidence of the testator’s actual intention (eg by reference to what he told the drafter of the will, or another person, or by what was in any notes he made or earlier drafts of the will which he may have approved or caused to be prepared).

Rectification

As to the scope of the courts’ power to rectify a document the Court said that rectification is a form of relief which involves “correcting a written instrument which, by a mistake in verbal expression, does not accurately reflect the [parties’] true agreement.

It would be inappropriate for the court to widen the power to rectify a will than those which were conferred by section 20. The Court has no inherent power to rectify a will that was wider than that which Parliament had conferred.

As to whether the document they were asked to consider was in fact a will, the UKSC said that is was. Mr Rawlings had signed it, and that he did so, both on the face of the document, and as a matter of fact, was with the intention of it being his last will and testament.

The UKSC conceded that the document signed by Mr Rawlings as his will purported  in its opening words to be the will of Mrs Rawlings, but the Court said there was no doubt that it cannot be hers, as she did not sign it.As it was Mr Rawlings who signed it, it can only have been his will, and it was Mr Rawlings who is claimed in these proceedings to be the testator for the purposes of section 9.

 Section 9(a) was therefore said to be satisfied.

As to whether Mr Rawlings intended by his signature to give effect to the will, the UKSC said that there could be no doubt from the face of the Will (as well as from the evidence) that it was Mr Rawlings’s intention at the time he signed the Will that it should have effect.

Section 9(b) was therefore said to be satisfied.

Notwithstanding the UKSC’s finding that the document they were concerned with was in fact a document executed in accordance with section 9, the Court went on to say that it does not appear that a document has to satisfy the formal requirements of section 9, 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 section 20.

In other words the reference to a ‘will’ in section 20 means any document which is on its face bona fide intended to be a will, and is not to be limited to a will which complies with the formalities to create a will – talk about pulling a rabbit from the hat!

Having established the document signed by Mr Rawlings was in fact his will the Court went on the explore the rest of section 20.

Clerical Error

The expression ‘clerical error’ in s20(1)a is not one with a precise or well established, let alone a technical, meaning.

The expression ‘clerical error’ was capable of carrying a wider meaning, namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of, a document (save, possibly, to the extent that the activity involves some special expertise). Those are activities which could properly be described as “clerical”, and a mistake in connection with those activities, such as wrongly filing a document or putting the wrong document in an envelope, could properly be called “a clerical error”

In summary – the solicitor who mixes up the wills of his clients, handing the wrong will to each spouse to execute – made a clerical error.

While acknowledging the argument that the effect of this ruling it does little to discourage carelessness on the part of those who prepare and oversee the execution of wills, the UKSC suggested that that the expression “clerical error” in section 20(1)(a) should be given a wide, rather than a narrow, meaning on the following grounds:

• Given that as a matter of general law rectification of other documents (including unilateral documents) was not limited to cases of clerical error it appeared appropriate that the grounds for rectification was construed for wills as the words of section 20(1) can properly allow.
• There was no apparent limit on the applicability of section 20(1)(b), which supports the notion that section 20(1)(a) should not be treated as being of limited application and section 20(1)(a) should not be given a meaning which significantly overlaps with, let alone subsumes, that of section 20(1)(b).
• Looked at in context, sections17-21 of the 1982 Act are all aimed at making the law on wills more flexible and rendering it easier to validate or “save” a will than previously. The whole thrust of the provisions is therefore in favour of a broad interpretation of a provision such as section 20(1)(a).
• 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. : The Court hypothesised that if a solicitor is drafting two wills, and accidentally cuts and pastes the contents of B’s draft will onto what he thinks is A’s draft will, and hands it to A, who then executes it as his will, that will would be rectifiable as a clerical error under section 20(1)(a). On the other hand, if the solicitor accidentally gives B’s will to A to execute, and A executes it, that would not, on the respondents’ case be a clerical error and therefore rectification would not be available. A distinction of this sort seemed to their Lordships to be capricious or arbitrary.

“The fact that it can be said that the claimed correction would effectively involve transposing the whole text of the wife’s will into the [husband’s] will does not prevent it from being “rectification” of each of the wills”

Conclusions

The case will likely be of considerable comfort to solicitors instructed to prepare and oversee the execution of wills. The context of this decision is important. Questions of best practice and professional competence have been pasted across the legal press for the last 4 years following numerous high profile instances of judicial criticism directed at probate practitioners. Last year’s decision in Feltham v Freer Bouskell [2013] ECH 1952 was only the latest in a line of decisions that have cast a deep shadow onto the cost versus benefit of undertaking modern probate work.

There’s no conceptual clarity as to how far Lord Neuberger analysis of ‘clerical error’ goes. Consider the following scenarios and what the outcome might be:

• A solicitor mixes up a husband & wife’s mirror wills so they each sign the wrong one (Marley v Rawlings).
• A solicitor retrieves the will of Mr A from his files which Mr A then executes. In fact, owing to an oversight on the solicitor’s part because he was distracted at the moment he dug into the filing cabinet, he in fact retrieves the will of another Mr A, a man with the same surname as the man who has come to see him. By a miracle the will is simple and identical as to its terms, leaving everything to the RSCPA.
• What if, in the same circumstances as above, the solicitor actually retrieves the will of a person with the same surname but the will is in fact totally different in its terms to the will that the testator intended to sign.
• A solicitor, having spent several days drafting two sets of mirror wills which contain nearly identical terms, for two separate sets of clients with the same surname, mixes up the sets of wills he gives to each set of clients so that each couple sign the other couples’ mirror wills.
• Consider the same circumstances as above, the effect of the wills are the same but the surnames of the clients are different?
• What if the effect of the wills is radically different but the surnames are the same?

There are a huge number of potential variations but the point is these are difference of degree and not kind. Which scenario amounts to a clerical error and which is just negligence? In reality there’s likely to be an overlap. Even if the solicitor is negligence why bother suing them if you can apply to rectify? The rub is likely to be when one runs out of slack to give a busy solicitor running a busy office.

The clear concern is that Marley v Rawlings goes beyond providing comfort to will writers and instead sends out a message that one would have to be VERY sloppy before any client is going to pursue you for negligence when they can seek rectification instead.

Another potential objection (and one acknowledge by the Court itself) to the emphasis placed on rectification in preference to interpretation to resolve future cases like this is that relief, being equitable, turns on judicial discretion and may be denied on grounds of delay, change of position, or third party reliance.

Having recently done away with a magic morning after pill for trustees in Pitt v Holt, in dramatically expanding the scope to rectify a will under section 20 the Supreme Court appears to have devised another one for those who prepare and oversee the execution of wills.