Rectification Ordered Where Solicitor is Negligent in Arranging Client to Sign Wrong Will

Specialist contentious probate lawyer, Naomi Ireson, reviews the decision in Marley (Appellant) v Rawlings and another (Respondents) [2014]

This case involved short mirror Wills signed by husband and wife, Mr and Mrs Rawlings, in 1999. The Wills were prepared by a solicitor and were identical in terms, leaving everything to the other and on the second death, to Terry Marley, who was unrelated, but treated by them as their son.

By an oversight (which he admitted in his witness statement) the solicitor gave each spouse the other’s will to sign. This meant that Mrs Rawlings signed Mr Rawlings’ Will and vice versa.

Mrs Rawlings died in 2003 and her estate passed to her husband. Nobody noticed the mistake. When Mr Rawlings died in 2006, the negligent mistake then came to light.

At the time of his death, Mr Rawlings’ estate was worth £70,000. Terry Marley applied to the Court for the Will to be rectified so as to record what Mr Rawlings intended. The claim was defended by Mr Rawlings’ sons who would inherit the estate under the intestacy rules if the Will was deemed invalid.

The Judge at first instance and the Court of Appeal dismissed Mr Marley’s claim on the grounds that the Will did not satisfy the necessary formalities to be deemed a valid “Will” under the Wills Act because it had not been signed by the testator himself. And even if it was, it is not possible to rectify the Will.

Mr Marley appealed to the Supreme Court, who disagreed with the earlier decisions on the basis that:

  1. Whether the document in question is a commercial contract or a Will, the aim of the law should be to identify the intention of the party to the document by interpreting the words used.

  2. A Will is to be interpreted in the same way as any document, but in addition, where s21(1) of the Administration of Estates Act 1982 applies, it is possible to assist its interpretation by reference to evidence of the testator’s actual intention.

  3. On its face, the document was unambiguously intended to be a formal Will, and it was, on its face, signed by Mr Rawlings in the presence of two witnesses, on the basis that it was indeed his Will.

  4. It is possible to rectify a Will where a “clerical error” has arisen. Whilst there was no doubt that there was an ‘error’, Lord Neuberger went on to deem it to to be a “clerical error”, which widens the definition significantly as previously such errors were typically mistyping or an omission on the part of the solicitor or clerk.

  5. The appeal was allowed and it was held that the Will should be rectified so that it contained the typed parts of the Will signed by the late Mrs Rawlings in place of the typed parts of the Will signed by Mr Rawlings.

The impact of this case is expected to be far-reaching. It is widely reported as being likely to open the floodgates for claims for rectification of Wills. Not only has Lord Neuberger widened the definition of “clerical error”, but the Court has also adopted a more flexible approach in comparing the rectification of Wills to other forms of contract.

Until this decision, the formal requirements of the Wills Act had taken precedence. Wills were regarded as a special case, not like any other commercial contract.

Some see this as a victory for common sense as it enables Mr Rawlings’ genuine intentions to be carried out. Others take a dim view, preferring the certainty of strict Wills Act compliance with the uncertainty of a flexible, pragmatic approach which could lead to more litigation.