Many people will have read about the case of Marley v Rawlings (2014) in which a husband and wife mistakenly signed each others wills, thus possibly rendering them invalid.  In March 2014, the Supreme Court decided instead that the principles relating to contracts should also apply to wills, and so the wills could be interpreted as having been signed by the correct people.

That decision has now started to be applied in other cases – including Brooke v Purton [2014] EWHC 547.

In this case, the deceased was a wealthy man and wanted to ensure that the distribution of his estate was tax efficient.  He took advice from a solicitor who advised him to set up a discretionary trust to shelter some of his wealth from inheritance tax.  Unfortunately, the solicitor who drafted had mistakenly used a precedent from the firm's library which she had left unchanged and which was not suitable to reflect the deceased's intentions.

This meant that none of the assets of the deceased would pass into the trust, and thus tax would be payable on the entire lot.  The estate amounted to over £1.5 million, so this was potentially a very costly mistake.  It was also clearly contrary to what the deceased wanted.

The executors and trustees made an application to the Court asking that the will be corrected - either by being interpreted in the way that the deceased had intended, or by being rectified.

The judge in the High Court agreed that something had gone terribly wrong, and that the will as drafted could not possibly reflect what the testator wanted and had been trying to achieve.  Following Marley v Rawlings, he said that the Court should apply the same principles of interpretation to wills as to other contracts and should try to ensure that the deceased's intentions were put into effect.  The will should be read in such a way as to allow assets to pass into the trust.

The judge also felt that what had happened in this case fell within the definition of a 'clerical error' which would allow the will to be rectified.  However, if the will were interpreted properly then there was actually no need for rectification because it could be read in such a way as to reflect what the deceased was trying to achieve.

No doubt, if the application in this case had failed, the executors and trustees would have started professional negligence proceedings against the solicitors who drafted the will.  However, before starting proceedings for negligence, potential claimants will be expected to have taken reasonable steps to attempt to mitigate their loss (and defendants are bound to take issue if they have failed to do this without good reason).  They are not expected to embark on extremely costly or inherently uncertain litigation, but the current culture in the courts of looking to interpret the intention of the testator in a reasonably broad way means that applications for interpretation and/or rectification are no longer as risky or unusual as they once were.