The Supreme Court has adopted a pragmatic, ‘common-sense’ approach to an invalid Will dispute where a Solicitor made an obvious mistake when arranging for Wills to be signed by a married couple.
The Invalid Will Claim
The case of Marley v Rawlings and another  EWCA Civ 61 involved two testators – Alfred and his wife Maureen – who instructed their solicitor to draft mirror Wills whereby they left their entire estate to each other and then on the second death their estates would pass to the appellant in the case, Terry Marley, who was not related to them but who they treated as their son.
The Solicitor made an error on the day that the Wills were signed, giving the wrong Will to each spouse. As a result, Alfred signed Maureen’s Will and Maureen signed Alfred’s Will and nobody noticed the mistake.
Maureen died in 2003 and her estate passed to Alfred, again without anyone noticing the mistake. However, when Alfred died in August 2006 the error was spotted.
The general principle is that if a testator doesn’t sign their Will the Will is deemed invalid. In this case Alfred’s Will had been signed by Maureen rather than Alfred himself.
At the time Alfred died he owned the house in which he lived with Terry jointly with him, so Terry received the house by the doctrine of survivorship. There was however an additional £70,000 of assets which fell into Alfred’s estate. If Alfred’s Will was declared invalid it would have meant that these passed to Alfred’s two sons, Terry and Michael Rawlings (the Rawlings’), under the intestacy rules.
Terry applied to the Court for a declaration that Alfred’s Will should be rectified to reflect Alfred’s intention for it to contain what was in his actual Will (signed in error by Maureen). At the initial trial the Judge dismissed his case saying that the Will could not be rectified because it didn’t comply with the formalities of section 9 of the Wills Act 1837- namely that it had not been signed by the testator, thus confirming that he intended to give effect to it. Terry appealed to the Court of Appeal who also upheld the Trial Judge’s decision, saying that the Will didn’t comply with section 9 of the Wills Act 1837 and therefore wasn’t capable of being rectified.
Terry wasn’t to be put off and he took the case to the highest Court in England and Wales, the Supreme Court. The Supreme Court disagreed with the initial Trial Judge and the Court of Appeal concluding that the interpretation of a Will should be treated in the same way as the interpretation of a commercial contract. In contract law an obvious oversight doesn’t cause the entire contract to be invalid. The Court also ruled, that it is “possible to assist in interpreting the Will by reference to evidence of the testator’s actual intention (e.g. what he told the Will drafter, or another person or by what was in any notes he made or earlier drafts of the Will which he may have approved or caused to be prepared)”.
Having made its decision the Court went on to consider the second aspect of Terry’s appeal; whether, having interpreted Alfred’s true intention so as to ensure the Will complied with section 9 of the Wills Act 1837, the Will could then be rectified to reflect that intention. Rectification enables the Court to amend the Will when it is found that by way of a clerical error or failure to understand instructions it does not accurately reflect the testator’s intention.
The Court found that the error could be considered a “clerical error” because “there was an error, and it can be fairly characterised as clerical, because it arose in connection with office work of a routine nature. Accordingly, given that the present type of case can, as a matter of ordinary language, be said to involve a clerical error, it seems to me to follow that it is susceptible to rectification”
The Court therefore allowed Terry’s appeal with the result that the Will was rectified to reflect Alfred (and Maureen’s) wishes that the £70,000 should pass to Terry and not the Rawlings.
Analysis of the Court’s decision
This case is an example of the Court adopting a ‘common-sense’ approach to a problem which may, in reality, not be completely uncommon. In so doing it may help other families resolve the issue of rectifying a Will which contains an obvious error without the need to incur substantial legal costs arguing over the issue. Clarity on such matters is therefore always welcome from the Supreme Court.
Further, the wider definition of a “clerical error” may also go some way in helping with the rectification of other Wills which have obvious errors as the case shows a willingness on the Court’s part to do what is just, rather than sticking to the words of the Will as they appear on the face of it.
Critics of the decision say that it will lead to more probate disputes, not less. Everyone knew where they were under the old style, strict interpretation of s9 of the Wills Act. This case, by allowing the formalities to be waived in certain circumstances, could well open the floodgates to applications to validate otherwise invalid Wills, creating a trail of uncertainty for all concerned and more contested Will claims coming to court.
Do you have an invalid will claim?
We specilaise in invalid will disputes and are often able to act on a No Win – No Fee basis. If you would like to discuss the law surrounding invalid Wills or the rectification of Wills or you think this situation may apply to you or a family member then please us on 0808 139 1596 or email us for a free case assessment.