Marley v Rawlings [2011] EWHC 161 (Ch): more wills and won’ts

Very simple and unfortunate case.  Mr and Mrs Rawlings executed mirror wills.  Each leaving the survivor their estate, and the survivor leaving everything to Mr Marley, their adopted son. 

Problem was they executed the wrong one.  Mr Rawlings executed his wife’s, and she executed her husband’s.  The mistake was not noticed until the survivor – Mr Rawlings – died.  Which meant the Rawlings’ natural children, otherwise disinherited, would inherit the lot on intestacy.  Mr Marley, the chosen beneficiary, would be forced to move out.

Now, it’s not all bad for Mr Marley; he has a clear claim in negligence against the solicitors who mixed up the wills when getting the Rawlingses to execute.  But it IS bad for the solicitors, as they would end up essentially paying the value of the estate – some seventy grand – because of a cock-up over something that probably earned them a hundred quid.

So an application was made to Court.  To rectify the wills.  There’s the power to do that under s20 of the Administration of Justice Act 1982:

“1) If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence—

(a) of a clerical error; or

(b) of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.”

OK.  So far so good.  Mr Marley’s brief couldn’t find an exact precedent in English law, but he did bring forward cases from New Zealand, Jersey and Canada, which allowed the substitution of the right will for the wrong one where someone had signed the wrong one, and Australia, where a will didn’t need to be signed at all so long as the intent was clear.  Although those courts do not bind the English court, they are often highly persuasive.  Same legal system, same thought process, very very often same result.

So an easy win?  Er, no.  The Court refused to rectify the will.  Getting the wills mixed up when handing them over to sign is not a “clerical error” because a “clerical error” only refers to the words of the will itself.  Because there was no error of drafting in the will – the will said exactly what the Rawlingses wanted – there was no clerical error. 

I have to admit that when I read the appropriate paragraph – and there IS only one paragraph investigating that particular issue – my gast was flabbered.  The judge asked “what if, instead of what actually happened, the solicitor had pulled a will prepared for a totally unconnected testator out of his briefcase and that one had been signed by mistake? It flies in the face of common sense to say that the court would have jurisdiction to rewrite the will in that situation, but there can be no ground of distinction in principle.”  Well, yes, there IS a ground of distinction in principle; the will signed by Mr Rawlings had EXACTLY THE WORDS HE WISHED TO INCLUDE.  And how great a leap of imagination is it to suggest that the fairly obvious clerical error was getting the names and pronouns wrong? 

Elsewhere the judge stated that “the testator did not intend by his signature to give effect to the will which he signed. If asked whether he did he would not have said, 'yes, subject to correction of errors by substituting my wife's name for mine wherever it occurs'. He would simply have responded, 'no, of course not, that is my wife's will'.”  Again I would submit that this is the wrong question to ask.  These were mutual wills.  If Mr Rawlings were asked, when being shown BOTH wills, whether the one he signed contained his wishes, he would say “yes, you can see me and my wife are of one mind, so we executed these wills.”  And if he were taken to the signature page and shown that they had signed the wrong ones, he would have acted accordingly.  He signed a will stating that the residue estate should go to Mr Marley, his wishes were that the residue estate should go to Mr Marley, there is a specific statute stating that balls-ups can be corrected, every other English-type legal system allows rectification in these circumstances and the Court, in a very short, barely reasoned, judgment has ignored everything in favour of an extremely narrow definition of “clerical error” that pays little attention to the nature of mutual wills.

I really hope this one goes to appeal.  The judge quoted dicta from 1875 stating “much as I regret the blunder, I cannot repair it.”  I would like to think we have moved on in the last 136 years.  At least the judge’s regret should be a green light to the Court of Appeal to take it on.