The Supreme Court's pragmatic approach
Could a recent Supreme Court decision offer a glimmer of hope to beneficiaries who have historically been left disappointed when they expected to inherit under a relative's will?
We are often contacted by beneficiaries who have discovered, following their relative's death, that their will is invalid. This is usually because the will does not comply with the formalities laid down by Parliament, by virtue of section 9 of the Wills Act 1837. Until recently, the requirements of section 9 were strictly construed which often meant that wills were rendered invalid and the intestacy rules applied. Section 20 of the Administration of Justice Act 1982 allows for rectification of a will if there has been a clerical error.
However, 'clerical error' had, until now, been given a narrow meaning and was of little assistance in a number of common circumstances. The Judgment handed down on 22 January 2014, by the Supreme Court, in Marley v Rawlings widens the meaning of 'clerical error' and the circumstances in which the Court may rectify a will, offering hope for many disappointed beneficiaries.
Two wills were created for a husband and wife, each of the wills was short and identical in their terms, save for the differences required to reflect the identity of the maker. They were 'mirror' wills. However, when the solicitor attended at the husband and wife's home so that the wills could be signed, in error, he handed the wife the husband's will to sign and visa versa. The couple therefore signed the other's will, rather than their own.
The error was not picked up at the time, nor upon the wife's death in 2003. The mistake was only discovered after the husband, Mr Rawlings, died in 2006. His sons challenged the validity of his will on the basis that it did not comply with the formalities under section 9 of the 1837 Act. If the will was not valid, Mr Rawlings died intestate and his estate was divided between his two sons. If it was valid, the estate was inherited under will by a family friend, Mr Marley.
At first instance, the Court dismissed the claim as the will did not satisfy the requirements of s.9 of the 1837 Act (a will must be signed by the testator) and that in any event, the error by the solicitor was not a 'clerical error' within the meaning of section 20 of the 1982 Act. The Court of Appeal upheld the decision on the first ground without consideration of the second ground.
The Supreme Court's approach
The Supreme Court took a rather more pragmatic approach and considered the mistake in the will as it would a mistake in a commercial contract, by "identifying the intention of the party or parties to the document by interpreting the words in their documentary, factual and commercial context". The Supreme Court consider that even if the Will did not satisfy the requirements of Section 9, it was still capable of being rectified pursuant to Section 20(1) and that the term clerical error should be given "a wide, rather than narrow meaning". Mr Rawlings' will was therefore held to be valid and Mr Marley inherited under it.
A new dawn?
This ruling is, by no means, a guarantee that the Court will now take a similar view on other types of mistakes made in the formation and execution of wills. However, for the time being (at least), it is a widening of the term 'clerical error' and potentially paves the way for the boundaries relating to the formalities of making a will and rectification of a will to be pushed further.
If you are unsure about whether a will is valid or not, you should seek immediate legal assistance.