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04 February 2014
The Supreme Court has allowed an appeal to alter mirror wills, signed by the wrong testators, so that the intended heir could inherit. In Marley v Rawlings(1) Lord Neuberger held that the wills should be rectified on the basis that a 'clerical error' had occurred. The judgment has extended the scope of rectification of a will and brought the approach to interpreting a will further into line with the courts' approach to contractual interpretation.
In 1999 Mr and Mrs Rawlings executed mirror wills pursuant to which each left their entire estate to the other and then to the appellant, Terry Marley, if the other had pre-deceased them. The wills were identical except for the wording to identify each testator. However, when executing the wills the couple inadvertently signed the other's will. This error did not come to light until Mr Rawlings's death in 2006 (Mrs Rawlings had died in 2003). The respondents, the couple's sons, then challenged the validity of Mr Rawlings' will.
In the first instance, the High Court held that the will was invalid under Section 9(b) of the Wills Act 1837 and that as such, it was not open to the court to rectify the will under Section 20 of the Administration of Justice Act 1982.(2) The Court of Appeal upheld the first finding and did not consider the second.
In his appeal to the Supreme Court, the appellant challenged the Court of Appeal ruling on the grounds of:
The first argument advanced by the appellant was that the will, when properly interpreted, was valid and effective. This was based on the idea that the two mirror wills should be read together, as it was clear from the face of the two documents that they were signed on the same date by a co-habiting couple. The wills were also laid out in very similar terms, in the same style and with the same witnesses. Further, the appellant contended that it was obvious from looking at the two documents that a mistake had occurred, and that Mr Rawlings had intended the will to be in the form of his wife's will.(3)
The Supreme Court advocated a common-sense approach, noting that the approach to the construction of a will should be the same as the approach taken to the interpretation of a commercial contract – namely, that the parties' intention is central to the interpretation of the contract. The parties' intention is understood by interpreting the wording of the document in its documentary, factual and commercial context.(4) Neuberger contended that, except in circumstances where Section 21(1) of the Administration of Justice Act applies, a will is to be interpreted in the same way as any other document.(5)
These comments are consistent with the courts' approach to interpreting similar unilateral documents, such as notices(6) and patents,(7) and conforms to the suggestion in Boyes v Cook that the court should "place itself in the testator's arm-chair" when interpreting a will.(8)
Historically, it has been considered that at common law the courts had no power to rectify a will.(9) However, in this case Neuberger could not see a convincing reason to support this proposition. In this instance, the Supreme Court felt that it was open to a court to rectify a will, in the same way as it would any other document.(10)
Turning to the issue of rectification under statute, the Supreme Court examined the contention that the appellant could not rely on Section 20(1) of the Administration of Justice Act because the will was not in fact valid, as it did not meet the criteria prescribed in Section 9 of the Wills Act. Previously, in the Court of Appeal judgment in this case, the judge stated: "[I]t seems to me the only place to start… is with the question of the formal validity of the will."(11) Therefore, only if the will was held to be formally valid would it then be open to the court to consider rectification.(12)
Section 20(1) of the Administration of Justice Act provides that:
"If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence:
a) of a clerical error; or
b) of a failure to understand his instructions,
It may order that the will shall be rectified so as to carry out his intentions."
While there was no doubt that an error had been made, the Supreme Court had to determine whether this error had been clerical and was therefore capable of rectification.(13) If the error was clerical, the will could be rectified and would therefore be considered valid.
Unfortunately, the Supreme Court did not deem it necessary to determine the appellant's argument on interpretation, as it was not the primary ground of the appeal and in the court's view the case did not turn on its decision.
In relation to rectification at common law, Neuberger stated that to alter the will by copying and pasting parts of the will onto the other to reflect the true intention of the testator would involve "converting what is a simple and beneficial principle of severance into what is almost a word game with haphazard outcomes".(14)
The appellant succeeded in its argument under Section 20(1) of the Administration of Justice Act that it was possible to rectify the will as a 'clerical error' had occurred. Neuberger could see no reason why the word 'will' in Section 20(1) could not be read as meaning a document which, once rectified, was valid.(15) This was consistent with the principle that rectification operates retrospectively.(16)
The Supreme Court took what could be considered a wide interpretation to the term 'clerical error' in Section 20(1). Neuberger found that a clerical error was not restricted to typing errors and could include an error out of the office "such as preparing, filing, sending, organising the execution of a document".(17) Therefore, the term 'clerical error' could encompass the error in Marley, because the error arose in connection with office work of a routine nature.(18)
Accordingly, the will was adjusted and the appellant inherited the entire estate.
The Supreme Court's findings and comments in this case demonstrate the increasingly commercial approach taken by the courts in what is often viewed as an established area of law.
As the appellant had succeeded with the argument for rectification under statute, there was no need for the court to come to a decision on either interpretation of the will or rectification by common law. That being said, the obiter comments in the judgment are undeniably helpful for guidance as to how the courts should approach the question of interpreting and rectifying wills in the future.
This ruling also offers further clarification of the meaning of 'clerical error'. However, as was noted by Neuberger in his judgment, while Part IV of the Administration of Justice Act gives an example of a clerical error, it does not spell out the intended limits of the expression.(19) In the absence of parliamentary guidance on the position, the meaning of the term 'clerical error' remains subject to further interpretation of the courts. Indeed, the fact that the lower courts found in favour of the respondents in Marley, while the Supreme Court found for the appellant on this point, highlights the need for clarity and consistency in this area of law.
For further information on this topic please contact Sarah Trimmings, Leonora Howard or Geraldine Elliott at RPC by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The RPC website can be accessed at www.rpc.co.uk.
(1)  UKSC 2.
(2)  1 WLR 2146.
(3) At Paragraph 34.
(4) At Paragraph 20.
(5) At Paragraph 23.
(6) Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd  AC 749.
(7) Catnic Components Ltd v Hill & Smith Ltd  RPC 183.
(8) (1880) 14 Ch D 53.
(9) In re Reynette-James decd  1 WLR 161, per Judge Templeman.
(10) At Paragraph 28.
(11)  Ch 271 at Paragraph 39.
(12) At Paragraph 61.
(13) At Paragraph 68.
(14) At Paragraph 48.
(15) At Paragraph 66.
(16) Craddock Brothers v Hunt  2 Ch 136, 151 and 160.
(17) At Paragraph 75.
(18) At Paragraph 82.
(19) At Paragraph 84.
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