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Will Rectification: The Marley v Rawlings way...

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Will Rectification: The Marley v Rawlings way…

In my previous blogs I have reviewed the case of Marley v Rawlings, the first ‘will’ case to go before the UK Supreme Court. Briefly, this case involved a couple who made identical wills but upon execution mistakenly signed each other’s will. This only came to light upon Mr Rawlings’ death, the second of them to die. The wills’ left their entire estate to the surviving spouse and upon the death of the surviving spouse to their adopted son, Mr. Marley.

Mr. Marley applied for rectification of Mr Rawling’s will, however, his claim failed at first instance and on appeal. The reasons being, that the wills did not comply with Section 9 of the Wills Act 1837 in that it was, quite simply, not his will that he had signed and he therefore had no intention to give effect to it, thus, there was no will to rectify.  Secondly, even if there was a will to rectify, under section 20 Administration of Justice Act 1982 (S20 AJA) the court could not carry out the necessary rectification as the mistake made by the solicitor, in that the testators signed the wrong wills, could not be properly characterised as a ‘clerical error’ as defined under S20 AJA.

The above meant that Mr Rawlings’ estate, which also comprised of his predeceased wife’s estate, would have been split between their two biological sons, who were not beneficiaries under the wills and who purportedly had not had a good relationship with their parents.

Not to be deterred Mr Marely took this case to the UK Supreme Court where it was confirmed that the courts should apply the same principles when interpreting wills as they do when looking at contracts, thus expanding the ability to rectify wills.

Lord Neuberger also found that the will was valid as the testator had signed the will intending that it be his will in the presence of a witness and further under s20 AJA the reference to ‘a will’ refers to any documents which is intended to be a will or once rectified would be a will. Lord Neuberger went on to find that there was no reason why a ‘clerical error’ has to be interpreted narrowly and conversely it should be interpreted as widely as the words would allow to include mistakes ‘arising from office work of a routine nature, such as preparing, filing, organising the execution of a document’. Although this has expanded the scope of rectification there is criticism that this widened definition does not actually fit within the intention of S20 AJA which allows for the court to rectify a will if the error has led to the will becoming expressed rather than a clear reflection of the testator’s intentions. Further cases will shed light has to how the courts will deal with Lord Neuberger’s wider interpretation.

Lord Neuberger also found, quite remarkably, that there should be no limit as to the court’s powers to rectify wills.

This judgment significantly expands the courts powers as to the rectification of wills and it will be interesting to ‘watch this space’ as to the further developments in this area.

If you or anyone you know believe there has been a mistake in a will or a dispute has arisen after someone’s death please do not hesitate to contact us on the details below.

Katie de Swarte on katiedeswarte@childandchild.co.uk or 020 7201 3576, or;

Natasha McKeever on natashamckeever@childandchild.co.uk or 020 7201 3577

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