Signature Error Ultimately Proves Not to be Fatal to Will

As published in ePrivateClient

The Supreme Court gave its judgment in the case of Marley v Rawlings on 22 January 2014.

The Facts

In 1999 Mr and Mrs Rawlings visited their solicitor to execute their Wills. They prepared mirror Wills which left their Estates to each other and then ultimately to a Mr Marley. Mr Marley was not a blood relation of Mr and Mrs Rawlings but they regarded him as a son.

At the meeting, the solicitor who drafted the Wills accidentally handed the Will prepared for Mr Rawlings to Mrs Rawlings and vice versa. This mistake was not noticed by anyone attending the meeting. Mr and Mrs Rawlings therefore signed each other's Will making them at face value invalid.

Mrs Rawlings died some years later and at that point the fact that she had signed the Will drafted for Mr Rawlings went unnoticed. Her Estate therefore passed to Mr Rawlings without any dispute. 

It was only when Mr Rawlings died, that the mistake in respect of the signatures was noticed. The sons of Mr and Mrs Rawlings sought to inherit their father's Estate under the intestacy rules. Mr Marley commenced legal proceedings with a view to rectifying the Will.  

Legal analysis

As set out in the judgment in the Marley case, rectification involves "correcting a written instrument which, by mistake in verbal expression, does not accurately reflect the parties' true agreement". 

Mr Marley was unsuccessful at first instance on the basis that the Will did not satisfy the formality requirements under Section 9 of the Wills Act 1837 and that it was not open to the Court to rectify the Will. The Court of Appeal agreed that the Will did not satisfy the formality requirements and thus did not consider whether it could be rectified.

In delivering the leading judgment in the Supreme Court, Lord Neuberger formed the view that when interpreting a Will the approach of the Court should be similar to that taken when interpreting a contract. In essence, the Court should endeavour to find the intention of the testator by interpreting the words used in the Will in context.

The principal argument put forward on behalf of Mr Marley was that the Will should be rectified to accord with Mr Rawlings' intentions, being essentially to sign the Will drafted for him which, for the most part, mirrored the Will drafted for his wife which he actually signed.

Lord Neuberger considered the objections which might be raised against this argument.  Firstly, it was suggested that the correction of the Will to reflect Mr Rawlings' intentions might be too extreme a correction to amount to rectification.  Secondly, the counter-argument was raised that the Will might not actually be correctly regarded as a Will at all, because the Will as drafted was not signed by the person intended to make it.  In addition it was arguably invalid for the reason that Mr Rawlings failed to approve its contents.  Thirdly, it was suggested that the rectification of the Will could not be regarded as the correction of a "clerical error" as required by statute.

In respect of the first objection, Lord Neuberger was satisfied that there was a clear case for rectification.  To this extent he referred to and approved the leading judgment in the Court of Appeal, where Black LJ observed, "there can be no doubt as to what Mr and Mrs Rawlings wanted to achieve when they made their wills and that was that Mr Marley should have the entirety of their Estate, and that Mr and Mrs Rawlings' sons should have nothing".

The second objection that the Will could not actually be properly regarded as a Will was also dismissed for a number of reasons.  Lord Neuberger noted that the Will was "unambiguously intended to be a formal Will, and it was, on its face (and was in fact according to the evidence), signed by Mr Rawlings, in the presence of two witnesses, on the basis that it was indeed his Will."

Crucially the third possible objection was also overcome.  It was accepted by Lord Neuberger that the signature error could be regarded as a "clerical error" in broad terms so that it was an error of a sort which was capable of rectification.

Accordingly the Court held that Mr Rawlings' Will should be rectified to reflect his intention by containing the typed parts of the Will that were actually signed by Mrs Rawlings. 

Summary

The judgment of Lord Neuberger appears to widen the scope of "clerical error" as required for rectification. The analogy with the contract "mistake" is also interesting. The judgment also places heavy reliance on the intention of the testator. Whilst the outcome is clearly a victory for common sense and has a Lord Denning feel about it, the weight put on the intention of the testator has potential wide ranging consequences within this whole practice area.