Probate

Validity – Husband (H) and wife (W) making identical wills save for difference required to reflect maker of will – Wills leaving entire estate to appellant in event of both H and W passing – H signing W’s will and W signing H’s will by error – W passing away – Error not being noticed

Marley v Rawlings and another: Supreme Court: 22 January 2014

Section 9 of the Wills Act 1837 (the 1837 act), so far as material, provides: ‘No will shall be valid unless – (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either—(i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.’

Section 21 of the Administration of Justice Act 1982 (the 1982 act), so far as material, provides: ‘(1) This section applies to a will – (a) in so far as any part of it is meaningless; (b) in so far as the language used in any part of it is ambiguous on the face of it; (c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances. (2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation.’

In May 1999, a husband (H) and wife (W) were visited by their solicitor to enable them to execute wills he had drafted on their instructions. The wills were short and, except for the differences required to reflect the identity of the maker, they were in identical terms. Each spouse left his or her entire estate to the other, but, if the other had already died or survived the deceased spouse for less than a month, the entire estate was left to the appellant, who was not related to them but whom they treated as their son (see [3], [4] of the judgment). By an oversight, the solicitor had given each spouse the other’s draft will, and nobody noticed.

Accordingly, H signed the will meant for W, and W signed that meant for H, and the solicitor and his secretary attested the signature on each document. In 2003, W died and her estate passed to H without anyone noticing the mistake. In August 2006, H died and the mistake came to light. At the time of his death, H was a joint tenant with the appellant of the house in which they both lived, so the tenancy passed to the appellant through the doctrine of survivorship. In addition, there was £70,000 in H’s estate. The respondents, the two sons of H and W, challenged the validity of the will which H had signed (the will). If it was deemed valid, the appellant would inherit the £70,000 under its terms, whereas if it was deemed invalid, H would have died intestate, and the respondents would inherit the £70,000. The appellant commenced probate proceedings.

The judge dismissed the appellant’s claim, on the grounds that: (i) the will had not satisfied the requirements of section 9 of Wills Act 1837 (the 1837 act); and (ii) even if it had done so, it had not been open to her, the judge, to rectify the will under section 20 of the Administration of Justice Act 1982 (the 1982 act). The appellant unsuccessfully appealed to the Court of Appeal, which upheld the decision of the judge on the first ground, namely, that the will had not satisfied section 9(b) of the 1837 act. The appellant appealed.

The principal ground upon which the appellant contended that the will should be held to be valid was that it should be rectified pursuant to section 20 of the 1982 act, so that it had the effect which H had intended, namely, that it essentially stated what was in W’s will. The respondents raised three possible objections to that contention. The first was that the correction which needed to be made to validate the will was too extreme to amount to rectification. The second was that section 20 of the 1982 act only applied to a ‘will’, and, because the will, as executed, did not satisfy section 9 of the 1837 act and/or because it had not be executed with H’s knowledge and approval of its contents, it was not a ‘will’, and therefore section 20 of the 1982 act could not be invoked. The third argument was that the rectification could not be justified under either paragraphs (a) or (b) of section 20(1) of the 1982 act.

The appeal would be allowed.

(1) When interpreting a contract, a court was concerned to find the intention of the party or parties, and it did that by identifying the meaning of the relevant words: (a) in the light of (i) the natural and ordinary meaning of those words; (ii) the overall purpose of the document; (iii) any other provisions of the document; (iv) the facts known or assumed by the parties at the time that the document was executed; and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions. When it came to interpreting wills, the approach ought to be the same. Whether the document in question was a commercial contract or a will, the aim was to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context (see [19], [20] of the judgment).

Reardon Smith Line Ltd v Hansen-Tangen; Hansen-Tangen v Sanko Steamship Co [1976] 3 All ER 570 applied; Bank of Credit and Commerce International SA (in liq) v Ali [2001] All ER (D) 06 (Mar) applied.

(2) Section 21(1) of the 1982 act confirmed that a will should be interpreted in the same way as a contract, a notice or a patent. In particular, section 21(1)(c) of the 1982 act showed that ‘evidence’ was admissible when construing a will, and that that included the ‘surrounding circumstances’. However, section 21(2) went further. It indicated that, if one or more of the three requirements set out in section 21(1) was satisfied, then direct evidence of the testator’s intention was admissible, in order to interpret the will in question.

Accordingly, save where section 21(1) of the 1982 act applied, a will was to be interpreted in the same way as any other document, but, in addition, in relation to a will, or a provision in a will, to which section 21(1) applied, it was possible to assist its interpretation by reference to evidence of the testator’s actual intention (see [25], [26] of the judgment).

(3) As a general proposition, there might be force in the point that the greater the extent of the correction sought, the steeper the task for a claimant who was seeking rectification. However, there was no reason in principle why a wholesale correction should be ruled out as a permissible exercise of the court’s power to rectify. On the contrary, to impose such a restriction on the power of rectification would be unprincipled and it would lead to uncertainty (see [53] of the judgment).

The first of the respondents’ arguments should be rejected. The fact that it could be said that the claimed correction would effectively involve transposing the whole text of W’s will into the will did not prevent it from being ‘rectification’ of each of the wills. Subject to the respondents other two points, the instant circumstances seemed to have given rise to a classic claim for rectification.

There was certainty as to what H wanted, and there was certainty as to how he would have expressed himself as there could be no doubt that he would have signed the will prepared for him if he had appreciated the mistake. Accordingly, that was a very clear case for rectification - subject always to the two other points raised by the respondents (see [52], [54], [87] of the judgment).

(4) It was important to bear in mind that section 9 of the 1837 act was concerned with formalities. The fact that it was pretty clear from the provisions which it contained that a will might face problems in terms of interpretation or even validity did not mean that it could not satisfy the formality requirements. Accordingly, the fact that a document had been admitted to probate did not prevent a court of construction from coming to the conclusion that that document had no operative effect (see [58] of the judgment).

In the instant case, it was true that the will purported in its opening words to be the will of W, but there was no doubt that it could not be hers, as she had not signed it; as it was H who signed it, it could only have been his will, and it was he who was claimed in the instant proceedings to be the testator for the purposes of section 9 of the 1837 act. Accordingly, section 9(a) appeared to be satisfied. It was true that the will did not make sense, at least if taken at face value, but that was a matter for ‘a court of construction’.

There could be no doubt, however, from the face of the will (as well as from the evidence) that it had been H’s intention at the time he signed the will that it should have effect, and so it seemed that section 9(b) of the 1837 act had also been satisfied in the case. Notwithstanding the fact that the contents of the will, unless rectified, did not satisfy the requirements that they had the full knowledge and approval of H, and even if that court had been right in their view that the will had not satisfied the requirements of section 9(b) or (possibly) section 9(a) of the 1837 act, it would still be open for the appellant to invoke section 20 of the 1982 act.

In other words, it did not appear that a document had to satisfy the formal requirements of section 9 of the 1837 act, or of having the testator’s knowledge and approval before it could be treated as a ‘will’ which was capable of being rectified pursuant to section 20 (see [59], [60], [87] of the judgment).

Resch’s Will Trusts, Re, Le Cras v Perpetual Trustee Co Ltd [1969] 1 AC 514 applied.

(5) In considering the meaning and ambit of section 20(1)(a) of the 1982 act, the essence of the matter was that a clerical error occurred when someone, who might be the testator himself, or his solicitor, or a clerk or a typist, wrote something which he had not intended to insert or omit something which he had intended to insert. The remedy was only available if it could be established not only that the will failed to carry out the testator’s instructions but also what those instructions were.

If, as a result of a slip of the pen or mistyping, a solicitor (or a clerk or indeed the testator himself) inserted the wrong word, figure or name into a clause of a will, and it was clear what word, figure or name the testator had intended, that would undoubtedly be a clerical error which could be rectified under section 20(1)(a) of the 1982 act. It was hard to see why there should be a different outcome where the mistake was, say, the insertion of a wrong clause/clauses because the solicitor had cut and pasted a different provision from that which he intended. Accordingly, the notion that a wholesale replacement of the provisions of a will was permissible under section 20(1)(a) of the 1982 act was demonstrated by the fact that it was difficult both as a matter in principle, and also in practice, to see where the line should otherwise be drawn (see [71]-[73] of the judgment).

The expression ‘clerical error’ in section 20(1)(a) of the 1982 act should be given a wide, rather than a narrow meaning, for a number of reasons. First, rectification of other documents (including unilateral documents) was not limited to cases of clerical error, however wide a meaning that expression was given. Accordingly, given that there was no apparent reason for a different rule for wills, it would appear appropriate that the grounds for rectification was as wide for wills as the words of section 20(1) of the 1982 act could properly allow.

Secondly, there was no apparent limit on the applicability of section 20(1)(b) of the 1982 act, which supported the notion that section 20(1)(a) should not be treated as being of limited application. However, section 20(1)(b) of the 1982 act also had a potential limiting effect on the ambit of section 20(1)(a), in the sense that section 20(1)(a) should not be given a meaning which significantly overlapped with, let alone subsumed, that of section 20(1)(b). Thirdly, the whole thrust of the 1982 act provisions was in favour of a broad interpretation of a provision such as section 20(1)(a).

Fourthly, the law would be somewhat incoherent if subtle distinctions led to very different results in cases where the ultimate nature of the mistake was the same. If a solicitor was drafting two wills, and accidentally cut and pasted the contents of B’s draft will onto what he thought was A’s draft will, and handed it to A, who then executed it as his will, that will would be rectifiable under section 20(1)(a) of the 1982 act, as the solicitor’s mistake would, on any view, be a clerical error. On the other hand, if the solicitor accidentally gave B’s will to A to execute, and A executed it, that would not, on the respondents’ case, be a clerical error and therefore rectification would not be available.

Fine distinctions could often lead to different outcomes where one was near the limits of the scope of some statutory provisions, a distinction of that sort seemed to be capricious or arbitrary. The position was essentially the same in the two cases. In each case, it was because his solicitor accidentally handed A a document which contained B’s will rather than A’s will, that A executed B’s will thinking that it was his will. In each case, the reason that the will which A executed had not represented his intentions was a silly mistake by the solicitor in the mechanics of faithfully carrying out his instructions. In neither case had the mistake involved the solicitor misunderstanding or mischaracterising the testator’s intention or instructions, or making any error of law or other expertise, so the error might fairly be characterised as ‘clerical’ – and there was no question of trespassing into section 20(1)(b) of the 1982 act territory (see [76]-[81], [87] of the judgment).

Accordingly, given that the instant type of case could, as a matter of ordinary language, be said to involve a clerical error, it seemed to follow that it was susceptible to rectification (see [82], [87] of the judgment). 

It was ordered that the will should be rectified so that it contained the typed parts of the will signed by the late W in place of the typed parts of the will signed by H (see [86], [87] of the judgment).

Decision of The Court of Appeal [2012] All ER (D) 38 (Feb) reversed.

Robert Ham QC and Teresa Rosen Peacocke (instructed by Hugh Cartwright & Amin) for the appellant; Nicholas Le Poidevin QC and Alexander Learmonth (instructed by Gillan & Co.) for the respondents.