Will - Construction - Intention of testator

Marley v Rawlings and another: Court of Appeal, Civil Division (Sir Anthony May, Lady Justice Black and Lord Justice Kitchin): 2 February 2012

In 1999, a married couple had an appointment with their solicitor at their home for the purpose of executing the wills that he had drafted for them. The wills were short and except for the differences necessary to reflect the identity of the maker, were in identical terms. Each spouse left his or her entire estate to the other spouse, or if the spouse failed to survive him or her by one calendar month, to M, who was not related them, but who they treated as a son.

By mistake, they signed each other’s will, rather than their own. No one noticed the error on the death of the wife in 2003. When the widower died in 2006, the error came to light. The couple’s children alleged that they had died intestate, so that they would inherit the estate, rather than M. M issued proceedings for probate of the widower's will. The claim was dismissed, and M appealed.

M submitted that the role of the court had been to give effect to the intention of the testator, pursuant to section 9 of the Wills Act 1837 (the 1837 act). Section 9 of the 1837 act required simply that the testamentary document was in writing and signed in such a way that it was apparent that the testator intended by his signature to give effect to it as a will. Consideration was given to sections 20 and 21 of the Administration of Justice Act 1982 (the 1982 act). The appeal would be dismissed. In the circumstances, the formalities in section 9 of the 1837 act had not been satisfied. The testator had not intended to sign the will that he had. It followed that the will was not valid. There was no room for rectification. It was not therefore necessary to determine whether what had arisen was the consequence of a clerical error within the meaning of section 20 of the 1982 act (see [56], [62], [94] of the judgment).

––'s Goods, Re (1850) 14 Jur 402 considered; Guardhouse v Blackburn [1861-73] All ER Rep 680 considered; Hunt's Goods, Re (1875) LR 3 P & D 250 considered; Meyer's Estate, Re [1908] P 353 considered; Guardian Trusts Executors Co of Zealand Ltd v Inwood [1946] NZLR 614 considered; Foster, Re [1956] NZLR 44 considered; McConagle v Starkey [1978] 3 NZLR 635 considered; In the matter of Harvey Snide, deceased (1981) 52 NY 2d 193 considered; Wordingham v Royal Exchange Trust Co Ltd [1992] 3 All ER 204 considered; Wood v Smith [1992] 3 All ER 556 considered; In the Estate of McDermid [1994] Can LII 4950 considered; Corbett v Newey [1996] 2 All ER 914 considered; Vautier (estate of), Re (2000) 3 ITELR 566 considered; Henriques v Giles [2009] ZASCA 64 considered. Decision of Proudman J [2011] All ER (D) 43 (Feb) affirmed.

Teresa Rosen Peacocke (instructed by Brunswick Law) for the claimant; Nicholas Le Poidevin QC and Alexander Learmonth (instructed by Gillan & Co) for the defendants.