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In 1999, Mr and Mrs Rawlings inadvertently signed each other’s wills (as the solicitor instructed to draft them mistakenly handed the incorrect will to each of them). The wills were mirror wills and sought to exclude their own two sons to benefit Mr Marley (who they treated as their adopted son) on the death of the second of them.
Mrs Rawlings died first in 2003, but the mistake in execution was not noticed until the death of Mr Rawlings in 2006. The natural children challenged the validity of the will. Mr Marley sought to rectify the will and for probate to be granted of the rectified will.
Proudman J dismissed Mr Marley’s claim at first instance on the grounds that (i) the will did not satisfy the formalities laid down in section 9 of the Wills Act 1837 and (ii) even if it had done so, it was not open to her to rectify the will (on the basis that the error was one of a “clerical” nature) under section 20 of the Administration of Justice Act 1982.
The Court of Appeal upheld the decision of Proudman J on the first ground (that the will failed to satisfy the execution formalities), and therefore found it unnecessary to consider the second ground on rectification, the result being that the natural children would inherit the estate under the intestacy rules, rather than the estate passing to Mr Marley as the couple had intended.
The Supreme Court has now overturned this decision, finding that (i) Mr Rawlings’ will did in fact satisfy the formalities of the Wills Act so as to be a “will” within the scope of section 20 and (ii) that it could be rectified to allow the deceased couples’ testamentary wishes to come in to effect.
Arguably the most important outcome of this case is that the decision has allowed perceived justice to prevail, so that the testator’s wishes can be followed. There is a sense that the Supreme Court has again found a way to “do the right thing” as they did in the landmark decision in Prest v Petrodel  UKSC 34 last year.
The decision has widened the definition of “clerical error” under the Administration of Justice Act, meaning that practitioners may now be able to rectify certain wills where they previously would not have been able to do so. The case has moved the focus of the interpretation of wills to that akin to the method used for contracts.
The Supreme Court have confirmed that the section 9 formalities do not need to be satisfied on their face for a will to be rectified under section 20, and that the testator’s knowledge and approval is not a pre-requisite for rectification. Lord Neuberger states in Marley: “I can see no reason why the word “will” in section 20(1) could not be read as meaning a document which, once it is rectified, is a valid will”.
It appears that the Court is keen to “save more wills” by utilising a more flexible approach and pushing for the widest scope of the Court’s powers to rectify wills being adopted.
The Supreme Court has considered how wills should be interpreted. Previously the Courts approached the interpretation of wills differently from how they would approach the interpretation of contracts and other documentation - however Lord Neuberger has changed the approach stating that “when it comes to interpreting wills, it seems to me that the approach should be the same [as when interpreting contracts]…the aim is to identify the intention of the party…by interpreting the words used in their documentary, factual and commercial context”.
Previously “clerical error” was considered to have a relatively narrow meaning, as outlined by Blackburn J in Bell v Georgiou  EWHC 1080 (Ch): “the essence of the matter is that a clerical error occurs when someone…writes something which he did not intend to insert or omits something which he intended to insert”.
This has now been widened to include “a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of, a document (save possibly, to the extent that the activity involves some special expertise)”. And Lord Neuberger has stated that “it would appear appropriate that the grounds for rectification is as wide for wills as the words of section 20(1) can properly allow”.
Practitioners will now have a wider scope in which they can seek to rectify a will: rectification may now be possible when a will may not be considered a will under the section 9 formalities, and the court will now take a wider view of what it can rectify following this decision.
This may put an early end to any possible claims, whether through probate or professional negligence proceedings, which may have formerly arisen.
However, there is of course the possibly that the Supreme Court’s decision will open the floodgates to further claims of rectification or proceedings as the courts have to define new boundaries for the definition of ‘clerical error’ and adopt a more intention-based approach than previously. The prospect of contested litigation in this area is obvious, and the Courts will need to be quick to stamp on the attempts further to widen the scope of this decision that will surely follow.
Aside from a clear reminder of the importance of checking that formalities have been complied with in the execution of a will, the shift to an ‘intention based’ approach to interpretation of wills now means that recording the details of that intention is more important than ever.
Notes setting out not just instructions but also what steps were taken by the solicitor to understand the rationale behind those instructions will be of paramount import going forward if cases invoking the Marley principle are to succeed.
For more information please contact Alison Broadberry, Partner
T: +44 (0)20 7427 6567