Signed, sealed but not delivered | Private client

We all make mistakes; it’s a fact of life.  During my time as a trainee, I've come to learn where I am most likely to make mistakes and I've developed ways to help avoid them. However, there are always some mistakes that don't get spotted until it is too late. The recent case of Marley v Rawlings and another is the perfect example of this. 

Before their death Mr and Mrs Rawlings instructed a solicitor to prepare simple mirror wills.  The wills provided that on the first death, the whole estate passed to the survivor and on the death of the survivor, everything was to pass to Mr Marley, who was also to be the sole executor.  Mr Marley was treated by Mr and Mrs Rawlings as their son and lived with the couple, although he had not been formally adopted by them.  Mrs and Mrs Rawlings had children of their own but they were estranged and were not to benefit under the wills.

Mr and Mrs Rawlings signed the wills in the presence of their solicitor, but the wills had inadvertently been muddled up which led to Mr Rawlings signing Mrs Rawlings' will and vice versa.  The mistake was not noticed at the time and, in fact, did not come to light until the second death, that of Mr Rawlings. 

It is possible to rectify a will under section 20 of the Administration of Justice Act 1982 where the will is so expressed that it fails to carry out the testator's intentions because of either a clerical error or a failure to understand the testator's instructions.  Under section 20, Mr Marley applied to the High Court to rectify the will because of a clerical error. The claim was defended by Mr Rawlings' two sons who, under the intestacy rules, stood to inherit Mr Rawlings' free estate worth around £70,000. 

At first instance, the High Court held that the will did not comply with section 9 of the Wills Act 1837 (which sets out the rules for attestation of a will) because Mr Rawlings did not intend to give effect to the will he signed as he signed his wife's will. In the alternative, the Court held that it had no power to rectify the will as the error was not a clerical one.

Mr Marley appealed the decision but the Court of Appeal also refused to rectify the will, again on the basis that it did not comply with section 9 of the Wills Act 1987 and so was not valid.  It was not possible to consider rectification of a will which was not valid.

Finally the claim was heard before the Supreme Court where it was unanimously decided that the will could be rectified on the basis of clerical error.  In reaching this decision, the Supreme Court held that wills should be interpreted in the same way as commercial contracts.  The Supreme Court also held that the formal requirements of section 9 were satisfied because Mr Rawlings had executed the will with the intention of it being his will.  There was no evidence to suggest that his intentions were other than to make a will to benefit Mr Marley on the second death.  

The Supreme Court decision has clarified the position that a "clerical" error need not be limited to a drafting error.  Although many commentators are suggesting that the widening of "clerical" error raises great uncertainty, it is hard to see that rectification will be available where the testator's intentions are in doubt. 

Based on the facts, I think most people (myself included) would feel that the right decision has finally been made – it has just taken a somewhat tortuous process and surely a great deal of expense to get there. This case clearly shows that spending a little time checking documents can result in a lot of time and money being saved in the future. And let's not forget the possibility of negligence claims arising. Whether you are a trainee or fully qualified solicitor, this case shows that it pays to be diligent. There is a definitely a lesson to be learned here!

Posted by Harriet Betteridge, trainee in the private client practice group.

Harriet started her training contract in September 2012 having previously worked in the Litigation team as a paralegal. Her previous experience includes working at a group of law centres in south London and in the Legal, Compliance and Risk team at the Charities Aid Foundation.