The supreme court case of marley v. rawlings & another: a mix-up in wills
The Supreme Court Case of Marley v. Rawlings & Another: A
Mix-Up in Wills
In December 2013, the Supreme Court heard the ongoing
dispute between two biological brothers and their
‘adopted’ sibling af ter their parents, Alf red Rawlings and
Maureen Rawlings, mistakenly signed each other’s wil s.
The issues bef ore the Supreme Court were:
(1) Whether, when a person mistakenly executes a wilmeant f or another person, that document complies withthe f ormalities required under section 9 of the Wil s Act1837 (“the 1837 Act”) so as to constitute a valid wil ; and
(2) If not, whether the wil can be rectif ied.
On 17th May 1999, Mr and Mrs Rawlings had an appointment with their solicitor f or the purpose ofexecuting mirror wil s. The wil s were in identical terms, except f or the dif f erences necessary to ref lect theidentity of the maker. The wil s were draf ted so that each spouse lef t his or her entire estate to the otherspouse, or if the spouse f ailed to survive him or her by one calendar month, to Terry Marley (“theAppel ant”).
Although Mr Marley was not related to them or f ormal y adopted, he was treated by the couple as their sonand had lived with them f or more than 30 years. He had been taken in as a teenager by the Rawlings f amilyat their f ormer home in Bermondsey, London, and became the couple’s sole carer. The couple also had twobiological sons, whom had not been provided f or in their wil s; Michael (who was Mr Marley’s best f riend atschool) and Terry Rawlings (“the Respondents”).
The couples’ solicitor and his secretary both went to the couple’s home to supervise the execution of thewil s. Unf ortunately, by mistake, Mr Rawlings signed the wil meant f or Mrs Rawlings and Mrs Rawlingssigned the one meant f or Mr Rawlings. The error only came to light upon the death of Mr Rawlings in 2006,who was the second to die.
The relationship between the Appel ant and the Respondents deteriorated f ol owing the deaths of thecouple and the subsequent discovery of the error in relation to the signing and witnessing of the wil s in1999.
At the time of his death, Mr Rawlings was a joint tenant with the Appel ant of the house in which they bothlived, so the tenancy passed to the appel ant through the doctrine of survivorship. In addition, there wassome £70,000 in Mr Rawlings’s estate. A dispute arose between the Appel ant on the one hand, and theRespondents on the other, as to whether the wil that Mr Rawlings had signed was a valid wil in which casethe Appel ant would inherit the legacy, or whether Mr Rawlings had, in f act, died intestate, in which case thetwo biological sons would inherit.
So f ar as validity is concerned, the central y important statutory provision is section 9 of the Wil s Act 1837,which provides as f ol ows:
“No wil shal 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 wil ; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses presentat the same time;
(i) attests and signs the wil ; or
(i ) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of anyother witness), but no form of attestation shal be necessary.”
The Appel ant brought a claim to rectif y the wil s under section 20 of the Administration of Justice Act 1982. Pursuant to section 20, the court has power to rectif y a wil where it is satisf ied that a wil is so expressedthat it f ails to carry out the testator’s intentions, in consequence of (a) a clerical error; or (b) a f ailure tounderstand his instructions.
The High Court and the Court of Appeal
In 2011, the High Court (Proudman J) held that when Mr Rawlings had accidental y signed the wil that hadbeen prepared f or his wif e, he did not intend by his signature to give ef f ect to it, as required by section 9(b)of the Wil s Act 1837. The requirements f or a valid wil are strict and, despite Mr Rawlings’ intentions beingvery clear, the High Court held that it did not have the power to rectif y the wil .
In February 2012, the Court of Appeal (President of the Queen’s Bench Division, Black LJ and Kitchin LJ)upheld the decision of the High Court that Mr Rawlings’ wil was invalid and could not be rectif ie. TheCourt of Appeal’s decision was one which the President of the Queen’s Bench Division “reached with greatregret”. The Court of Appeal (Black LJ gave the lead judgment), f ound that although the intentions of Mrand Mrs Rawlings were clear, their wil s were invalid because the “testator” named in the text had not signedhis or her name. Indeed, the Court of Appeal held that Mr Rawlings had not even complied with section 9(a)of the Wil s Act, which states that no wil shal be valid unless it is in writing, and signed by the testator, orby some other person in his presence and by his direction,
as he had not actual y signed the wil , in thesense of his
wil , at al .
The Court made it clear that section 20 of the Administration of Justice Act 1982 was predicated on therebeing a valid wil , or a wil that by virtue of the Wil s Act can be said to be the wil of the testator.
Notwithstanding the similarities in the mirror wil s, Mr Rawlings nonetheless meant to sign a total y dif f erentdocument. Black LJ held:
‘I find it very difficult to conceive of a set of circumstances in which rectification ordered under section 20 couldenable an otherwise invalid would-be wil to satisfy the requirements of section 9 without rocking the veryfoundations of that section at the same time
Mr Rawlings’ estate was theref ore to be distributed under the intestacy rules, meaning that theRespondents would be the only benef iciaries. As the Appel ant was not a biological or legal y adopted sonof Mr and Mrs Rawlings, he would not inherit.
The Supreme Court Decision
The Appel ant was initial y ref used permission to appeal to the Supreme Court. He re-applied and wasgranted permission. The matter eventual y came bef ore f ive Supreme Court Justices on 3rd December 2013.
In summary, the Appel ant’s case rested on three dif f erent contentions. The f irst was that Mr Rawlings’swil , properly interpreted, should be read, in ef f ect, as if it was the document signed by his wif e in 1999. Thesecond contention was that the extent of Mr Rawlings’s knowledge and approval of the contents of the wilwas such that it could be validated, albeit with deletions. The third contention was that the wil should berectif ied so as to accord with Mr Rawlings’s intentions.
The Supreme Court (Lord Neuberger (President), Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge)unanimously al owed the appeal
The Court declined to decide the “dif f icult point” on interpretation. It was not the basis upon which thecourts below decided the case and it was not the ground upon which the Appel ant primarily relied.
Furthermore, it appears that only limited argument was directed to the issue of whether the issue was oneof interpretation or of rectif ication. The Court, in deciding that the appeal succeeds on the ground ofrectif ication, proceeded on the basis that it f ailed on interpretation.
The Court rejected the second contention that the extent of Mr Rawlings’s knowledge and approval of thecontents of the wil was such that it could be validated, albeit with deletions. The Court acknowledged thatthere were cases where only part of a wil could be rejected on the ground that it was not known andapproved by the testator. However, those parts were self -contained, e.g. a particular clause or sub-clause.
In contrast, the Appel ant’s proposed exercise in deletion would involve “converting what is a simple andbeneficial principle of severance into what is almost a word game with haphazard outcomes.
” It was theref orequite inappropriate to invoke this principle in order to justif y selecting phrases and provisions f or deletionf rom a wil intended to be signed by someone else, to enable the wil , ef f ectively by happenstance, tocomply with the testator’s intentions.
The Court, in deciding the third contention, held that as a general proposition, the greater the extent of thecorrection sought, the steeper the task f or a claimant who is seeking rectif ication. However, there was noreason in principle why a wholesale correction should be ruled out as a permissible exercise of the court’spower to rectif y. On the contrary; to impose such a restriction on the power of rectif ication would beunprincipled – and it would also lead to uncertainty.
The Court took the view that the present circumstances gave rise to a classic claim f or rectif ication,subject to two f urther points. There was certainty as to what Mr Rawlings wanted, and there was certaintyas to how he would have expressed himself if he had appreciated the mistake.
The f irst point related to whether the document was a “wil ”. Although the wil mistakenly signed by MrRawlings purports in its opening words to be the wil of Mrs Rawlings, there was no doubt that it cannot behers, as she did not sign it. As it was Mr Rawlings who signed it, it can only have been his wil , and it is hewho is claimed in the proceedings to be the testator f or the purposes of section 9. Accordingly, held theSupreme Court, section 9(a) was satisf ied.
Further, although the wil does not make sense, at least if taken at f ace value, that is a matter f or “a courtof construction”. The Court held that there could be no doubt, however, f rom the f ace of the wil , as wel asf rom the evidence, that it was Mr Rawlings’s intention at the time he signed the wil that it should haveef f ect. Accordingly, section 9(b) was also satisf ied in this case.
The Court held that it would stil be open f or the Appel ant to invoke section 20, notwithstanding the f actthat the contents of the wil , unless rectif ied, did not satisf y the requirement that they had the f ulknowledge and approval of Mr Rawlings, and even if the Court of Appeal had been right in their view that itdid not satisf y the requirements of section 9(b) or section 9(a). The Court noted that if section 20 couldnot be invoked to rectif y a document which was currently f ormal y invalid into a f ormal y valid wil , that wouldcut down its operation f or no apparently sensible reason.
The f inal issue raised by the Appel ant’s rectif ication claim was whether it was within the ambit of section20(1). The Court held that whilst there is an argument f or saying that it does nothing to discouragecarelessness, the expression “clerical error” in section 20(1)(a) should be given a wide, rather than anarrow, meaning. The expression can encompass mistakes arising out of of f ice work of a relatively routinenature, such as preparing, f iling, sending, organising the execution of , a document (save, possibly, to theextent that the activity involves some special expertise).
Importantly, the term “clerical error” can, as a matter of ordinary language, encompass the error involved inthis case. There was an error, f airly characterised as clerical, because it arose in connection with of f icework of a routine nature.
The Court theref ore al owed the appeal, and held that the wil should be rectif ied so that it contained thetyped parts of the wil signed by the late Mrs Rawlings in place of the typed parts of the wil signed by MrRawlings.
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