A husband and wife each accidentally signed Wills prepared for the other, due to an oversight on the part of their solicitor. Could a Court correct this obvious error and, if so, how?

In Marley v Rawlings [2014] UKSC 2, Alfred and Maureen Rawlings had both executed Wills prepared for them, on essentially identical terms. Each Will left the entire estate to the other, but provided that, if the other had already died, or survived the spouse by less than a month, the estate was to be left to the appellant, Terry Marley. Mrs Rawlings died in 2003, leaving her estate to Mr Rawlings, who later died in August 2006. It was then discovered that Mr & Mrs Rawlings had inadvertently executed each other’s Wills. Mr Marley began probate proceedings, which came before Mrs Justice Proudman. Mr Marley had asked the Court to “rectify” Mr Rawlings’ Will  to record what Mr Rawlings had intended. The judge dismissed Mr Marley’s claim.  She did so on two bases: (i) the Will did not satisfy the requirements of s. 9 of the Wills Act 1837 (the Act) and, even if it had done so, (ii) it was not open to her to rectify the Will under s. 20 of the Administration of Justice Act 1982 (the AJA). The issue with section 9 of the Act was that Mr Rawlings’ could not be said to have “intended by his signature to give effect to the Will” (because it plainly did not reflect his intentions).  Mr Marley appealed to the Court of Appeal, who upheld Proudman J’s decision. Mr Marley then appealed tothe UK Supreme Court.

The Court considered the principles governing the interpretation of Wills and the circumstances in which rectification of a Will would be appropriate. The Court decided (relying on section 21 of the Act) that the approach when interpreting Wills should be the same as that when interpreting a contract; the aim being to identify the intention of the party or parties by interpreting the words used in their documentary, factual and commercial context. In addition, the Court held that, in relation to a Will, interpretation should be assisted by reference to any surrounding circumstances which evidence the testator’s actual intention. It was noted that traditionally it had always been assumed that the court did not have the power to rectify a Will. However, that was certainly no longer the case given the express power in s.20 of the AJA. That section allows for rectification where the 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“.

In light of the above, the Court considered whether rectification was appropriate in this particular case. The Court identified three potential objections: (i) the correction that needed to be made in order to validate the Will was too extreme to amount to rectification; (ii) s. 20(1) of the AJA only applied to a ‘Will’ and because Mr Rawlings’ Will, as executed, did not satisfy s.9 of the Act, it was not a ‘Will’; and (iii) rectification could not be justified under either paragraph (a) or (b) of section 20(1) of the AJA.

The Court rejected the first argument, holding that there was no reason in principle why a wholesale correction should be ruled out. It also rejected the second argument, on the basis that problems of interpretation or validity did not prevent a Will from satisfying the formal requirements set out in s. 9 of the Act. In this case, the document was, on its face, unambiguously intended to be a formal Will, signed by Mr Rawlings in the presence of two witnesses.

Regarding the third objection,  the Court held that, even if the Will did not satisfy s.9 of the Act, Mr Marley would still be open to invoke s. 20(1) of the AJA. The Court disagreed with the the Court of Appeal, who  held that “the logical place to start – indeed, it seems to me the only place to start – is with the question of the formal validity of the will“.  The reasons for this were as follows:

(i) the approach of the Court of Appeal took away much of the beneficial value of section 20(1) if it could not apply to rectify invalid Wills;

(ii) the reference to a ‘Will’ could mean any document that is, on its face, bona fide intended to be a Will and is not limited to a Will which complies with the formalities;

(iii) a ‘Will’ could mean a document which, once rectified, is a valid Will; and

(iv) in other areas of law where formalities are required, for example land contracts, rectification is permitted even where it has the effect of converting an ineffective contract into an enforceable one.

Given these conclusions, the Court went on to consider whether the rectification claim fell within s. 20(1)(a) of the AJA, that is, whether the muddling of the two Wills could be considered a ‘clerical error’. He referred to the case of Bell v Georgiou [2002] EWHC 1080 (Ch) which summarised a clerical error as occurring

“…when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert…

The Court decided that the expression should be given a wide, rather than narrow, meaning as there was no apparent limit on the applicability of section 20(1)(b) and the purpose of the section was to make it easier to validate a Will than it had been previously. A clerical error could therefore range from the inclusion of an incorrect word or figure, to the inadvertent pasting of an incorrect clause. In light of the above factors, the Court allowed the appeal and held that Mr Rawlings’ Will should be rectified to replace the typed parts of the Will with those contained in Mrs Rawlings’ Will.

Given their importance, Courts often take a strict approach to Wills and their execution.  This Supreme Court decision however indicates a broad approach to the rectification of Wills and the Court’s willingness to render a Will valid and enforceable in spite of a material mistake, in cases where the testator’s intentions were clear.