The recent Supreme Court decision of Marley v Rawlings and another explored what could constitute a “clerical error” in the context of a claim for rectification of a will. The will was only susceptible to rectification if it could be said that the accidental confusion of two wills at the time of their signature could be said to be a “clerical error”. Whereas the Courts have previously adopted a restrictive approach to this term, Neuberger LJ, in facilitating a common sense outcome for the appellant in this case, consciously held that its meaning could be widened to cover errors arising “in connection with office work of a routine nature”. Such an approach is likely to be welcomed by solicitors and their professional indemnity insurers alike.
In May 1999, Mr and Mrs Rawlings instructed a solicitor to draft their respective wills. The wills were in identical terms, except for the differences required to reflect their identities. Each spouse left his or her entire estate to the other, but, if the other had already died or survived their spouse by less than a month, the estate was left to a Mr Marley, the appellant. The appellant was not related to the Rawlings but they treated him as a son.
By an oversight, the Rawlings’ solicitor gave each spouse the other’s will to sign. Nobody noticed this error and so the couple each executed the will which had been prepared for the other.
Mrs Rawlings died in 2003, and her estate passed to her husband without anyone noticing the mistake. However, when Mr Rawlings died in August 2006, the error came to light. Mr and Mrs Rawlings’ two sons challenged the validity of the will which Mr Rawlings had signed (“the Will”). If it was valid, the appellant would inherit £70,000 under its terms. If the Will was invalid, Mr Rawlings would effectively have died intestate, and his sons, the respondents in this appeal to the Supreme Court, would inherit the £70,000.
The appellant argued the Will should be rectified so as to record what Mr Rawlings had intended i.e. so as to contain what was in the will signed by his wife.
Proudman J. at first instance dismissed Mr Marley’s claim on the basis that the Will did not satisfy the formal requirements of a will as set out at section 9 of the Wills Act 1837. Proudman J. also held that, even if the will had satisfied s 9 of the Wills Act, the requirements for rectifying the Will under section 20 of the Administration of Justice Act 1982 were not satisfied as the error made in the accidental swapping of the two wills could not be said to be “clerical”.
The Court of Appeal upheld this decision on the basis that the Will was not a valid will and did not consider the issue of rectification. The appellant then appealed to the Supreme Court.
Supreme Court decision
The appellant’s case on appeal rested on three contentions:
- the Will, if properly interpreted, should be read as if it was the document that his wife had in fact signed in May 1999;
- that Mr Rawlings’ knowledge and approval of the Will was such that the document should be validated; and/or
- that the Will should be rectified so as to reflect the testator’s intentions.
Giving the leading judgment, Neuberger LJ. held, in relation to (1), that the appeal failed on the grounds of interpretation. He had regard to the academic difficulties presented by determining whether the matter was a case of interpretation or rectification; to the fact that there had been little argument on the issue; and that it was not the ground upon which the appellant had principally relied. In respect of (2), it was held that validating the Will by means of the various deletions that were proposed by the appellant would “involve converting…a simple and beneficial principle of severance into….a word game with haphazard outcomes”; rather this approach was best and most appropriately deployed in circumstances where the ‘problematic’ section of a will is self-contained, as had been the case with earlier authorities.
The appellent’s appeal was, however, upheld in respect of section (3). In determining that the Will did meet the formal requirements of section 9 of the Wills Act, Neuberger LJ. employed tools of interpretation customarily relied on in interpreting commercial contracts. His view was that the fact that a will is made by a single party is not a convincing reason for adopting a different approach in its interpretation as that adopted when interpreting any other document. He held that there was no doubt that the Will could not be Mrs Rawlings’ and that there could be no doubt that it was Mr Rawlings’ intention at the time that he signed the Will and that it should have that effect.
Neuberger LJ. then considered whether the requirements for rectification under section 20 of the Administration of Justice Act 1982 were met. The Act provides that, if a court is satisfied that a will fails to carry out the testator’s intentions in consequence of a “clerical error”, it may order that the will be rectified so as to carry out his intentions. Counsel for the respondents argued that giving a testator the wrong will to sign was a mistake of a different nature and could not be characterised as “clerical”. Neuberger LJ., however, held that for the expression to retain such a narrow meaning (i.e. by making the distinction that the respondent had made) would be “capricious or arbitrary”. He held that it should instead be given a wider meaning, to apply to errors “which arose in connection with office work of a routine nature”. Accordingly the appeal succeeded.
As the leading judgment in the Court of Appeal observed, there was no doubt as to what Mr and Mrs Rawlings had wanted to achieve when they made their wills. By widening the parameters of what constitutes a “clerical error” for the purposes of section 20 of the Administration of Justice Act 1982 a common sense outcome was achieved. It is worth noting that, in this case, both the testator’s intention and the solicitor’s mistake were clear.
This outcome is likely to be welcomed by solicitors undertaking wills and probate work and by their professional negligence insurers in mitigating the impact of a broader range of simple administrative errors.