Following in the wake of the Supreme Court case of Marley v Rawlings in February this year, a decision in the High Court has found that where a will does not reflect the testator's intention, the court may intervene to interpret the will to give effect to their wishes.  

The Supreme Court's decision in Marley v Rawlings involved mirror wills made by a husband and wife, where each had signed the other's will at a meeting with their solicitor: at face value both wills were invalid. The mistake only came to light on the second death, and the Court found that they could use their powers of rectification to amend the Will on the basis that there had been a clerical error in executing the will.

Rectification of a will is a statutory remedy which can be used only where there has been a clerical error or a failure by the draftsman to understand the testator's instructions, which in turn has led to the Will not reflecting the intentions of the testator. The Supreme Court held that the "clerical error" in this case was the mixing up of the Wills when they were signed, and ordered rectification.

However, the wider significance of the case lies in the approach to the interpretation of the will: the Court gave weight to the concept that a will might be interpreted in light of the intentions of the parties to it, much in the same way as any other legal document, without necessarily the need for it to be rectified under the statutory powers. Though not necessarily an entirely new approach, the judgment may open up a new interest in approaching the courts for remedies where wills do not fit within the route of rectification.

Such a case has recently come to the High Court. In Brooke v Purton the draftsman had erroneously used a precedent will clause without fully considering its effect, which was that the testator's business assets, which were clearly intended to be passed to a discretionary trust would pass to his young children outright. This was not what was intended either by the draftsman or the testator.

The High Court followed the approach advocated in Marley v Rawlings and interpreted the meaning of the will in light of the testator's intentions and the surrounding circumstances, and gave effect to these intentions by construing the meaning of the will as if certain terms were omitted. The judge decided that he did not need to use his powers of rectification to do this, but could as a matter of construction ignore the offending terms to give effect to the testator's intention.

Though both cases illustrate a relaxation of the court's approach to allowing a reinterpretation of a will after death, this is not to say that every effort must still be made to get a will right in the first place. Costly litigation is no substitute for a properly drafted will.