The Supreme Court decision in Marley v Rawlings [2014] UKSC 2 offers a new commercial approach to the rectification of wills

The Supreme Court decision in Marley v Rawlings [2014] UKSC 2 offers a new commercial approach to the rectification of wills

The facts of recent UK case Marley v Rawlings (260 KB PDF) were straightforward. Mr. and Mrs. Rawlings gave instructions to their solicitor to prepare identical wills, each leaving their estate to the other, but if the other had already died, to their “adopted son, Terry Marley”. The Rawlings had two biological sons, who were effectively disinherited by these wills. Unfortunately and inadvertently, husband and wife each signed the other’s will as a consequence of the solicitor handing the wrong will to the wrong person. The mistake was discovered on the death of Mr. Rawlings, several years after the death of Mrs. Rawlings, and the Rawlings’ biological sons challenged the will.

Probate proceedings were initiated by Mr. Marley, seeking rectification of the will on the basis that the testator intended to benefit him. The solicitor, who drafted the wills, gave evidence of his error in allowing each will to be signed by the wrong person, but the court held that the will did not satisfy the requirements of the Wills Act, as it had not been signed by the testator, and was, therefore, invalid and incapable of rectification under the Administration of Justice Act 1982. The effect of this decision was that the testator’s estate passed to the biological sons under the rules governing intestacy. The Court of Appeal upheld the first instance decision.

The decision of the Court of Appeal was overturned in the Supreme Court, however, where it was held that the will could nevertheless be treated as a will under section 9 of the Wills Act 1837. It met the formality requirements of the Act, having been signed by the testator in the presence of two witnesses, was unambiguously intended by the testator to be his will and as such, was capable of rectification. In delivering his judgement on behalf of a unanimous court, Lord Neuberger introduced a new commercial approach to the interpretation of wills:

“When interpreting a contract, 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, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provision of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions….When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context.”

The Supreme Court’s decision in Marley v Rawlings has the effect of widening the definition of “clerical error” beyond simple copying, writing and typing mistakes, to mistakes arising in connection with office work of a routine nature, such as this “… silly mistake by the solicitor in the mechanics of faithfully carrying out his instructions”. It may introduce a significant measure of uncertainty to the probate arena, as the boundaries of what constitutes a “clerical error” are slowly hammered out over time. Clearly, evidence of the testator’s intention will be of paramount importance in each case. Nevertheless and notwithstanding the possibility of increased litigation, as would-be beneficiaries battle it out, there is no doubt that the more pragmatic commercial approach adopted by the court in this instance resulted in a fair outcome in circumstances where there had clearly been a mistake.