Clerical errors in wills – Supreme Court Decision in Marley v Rawlings

We look at the implications of the Supreme’s Court’s recent decision in Marley v Rawlings (2014). This held that, despite Mr & Mrs Rawlings executing each others’ wills, their intended beneficiary should inherit the estate.

Background

Mr & Mrs Rawlings gave instructions to their solicitors to prepare mirror wills in May 1999. Each intended to leave their estate to the surviving spouse, but if the other had already died, the entire estate was left to Mr Terry Marley, who was not related to them but whom they treated as their son.

In error, the solicitor gave Mr & Mrs Rawlings the other’s draft will to execute, which they did, with the solicitor and his secretary witnessing them. The wills were placed into storage. Mrs Rawlings died in 2003, and her estate passed to Mr Rawlings without the error being discovered.

In August 2006, Mr Rawlings died. He was a joint tenant with Mr Marley of the house in which they both lived. His interest passed to Mr Marley through the doctrine of survivorship, leaving an estate worth £70,000 to pass by will.

The Rawlings’ sons challenged the validity of Mr Rawlings’ will on the basis that Mrs Rawlings had executed it. If it was invalid, they would inherit the estate under the intestacy rules. Mr Marley issued probate proceedings.

Previous decisions

At first instance, in 2011, Proudman J dismissed Mr Marley’s claim because the will did not satisfy s.9 Wills Act 1937, relating to the execution of wills, and that, even if it did, it fell outside the criteria for rectification under s.20 Administration of Justice Act 1982 (AJA).

Mr Marley appealed, and the Court of Appeal upheld the first instance decision on s.9 Wills Act 1937. It did not consider the rectification argument. Mr Marley, who had by then reportedly instructed solicitors to investigate a claim against Mr & Mrs Rawlings’ solicitor in his capacity as a disappointed beneficiary, appealed.

The Supreme Court

Unanimously, the Supreme Court upheld Mr Marley’s appeal, in a decision which could have wider ranging consequences than at first glance at the headnote.

The Supreme Court held the will satisfied the requirements of s.9 Wills Act, as even though Mr Rawlings signed his wife’s will, it could only have been his will and he intended it to take effect when executing it. Lord Neuberger, in a judgment approved by his fellow judges, borrowed heavily from the principles used in interpreting commercial contracts, where the intention of the parties, in their “documentary, factual and commercial context”, is key.

Perhaps most notably for practitioners and their indemnity insurers, the Supreme Court expanded the previously narrow interpretation of “clerical error”, which is one of the grounds for rectification under s.20 AJA. The error of the Rawlings’ solicitor which caused Mr Rawlings to execute his wife’s will was found to be within that broader meaning.

Analysis

The decision is a pragmatic solution to a case where the decisions at first instance and in the Court of Appeal had been criticised for their lack of a common sense approach. It also follows a recent trend in the relaxation of previously strictly-interpreted rules or guidelines for making a valid will, for instance in respect of the so-called “Golden Rule” relating to capacity.

It remains to be seen whether this trend will continue, and expand into further aspects of drafting and executing wills, so that other technical or minor failings do not affect their validity. It will need many more cases going to at least the Court of Appeal before the landscape is any clearer.

This decision is likely to be good for practitioners and their indemnity insurers. Although these particular circumstances are rare, the decision of the Supreme Court, and perhaps also the tone and language Lord Neuberger employed in his judgment, all point towards a more forgiving environment for practitioners. At the very least, the decision is likely to have headed off what must have been a cast-iron negligence claim by Mr Marley against Mr and Mrs Rawlings’ solicitors.