The recent much publicised case of Marley v Rawlings & Another has once again highlighted the need for specialist advice to be taken when making a Will.
The case concerned the estate of the late Mr Rawlings. Mr & Mrs Rawlings made wills in 1999 leaving their estates to Mr Marley who was not a blood relation. However, Mr & Mrs Rawlings had inadvertently signed each other’s Wills, a fact which was overlooked by the solicitor at the time. Sadly, this only came to light when Mr Rawlings died and his two sons argued that he had died without a valid Will as he has not signed the Will bearing his name. The effect of Mr Rawlings dying without a will meant that his sons, not Mr Marley would inherit his estate.
Given that a Will is one of the most important documents you can ever sign, there are strict statutory principles that need to be complied with in order to sign a valid Will. The rules are simple and have been in place since the 1837 Wills Act. In order to be a valid Will, the document must be signed by the testator (the person making a Will) in the presence of two or more witnesses who are present at the same time and who also sign the Will.
However, when drafting Wills, there will always be scope for human error and therefore it is possible to apply to the Court for rectification of a Will when there has been an administrative error in the drafting. The rules for rectification are defined narrowly and are limited to situations where a clerical error or the Will draftsman misunderstood the testator’s instructions.
Cases involving rectification usually relate to typographical errors or the omission of standard words which usually appear in Wills. These are cases where obvious errors have been made on the part of the draftsman and the rectification is a straight forward mechanism.
Mr Marley brought an application to the Court for rectification but both the High Court and the Court of Appeal found in favour of the deceased’s sons on the basis that the Courts did not have power to change Mr Rawlings’ Will. The Courts found that Mr Rawlings’ signature on the wrong Will did not amount to a clerical error and so could not be rectified. The effect of these decisions was that Mr Rawlings had died without a valid Will and his sons therefore inherited his estate.
However, Mr Marley appealed this decision and the higher Supreme Court surprised the legal profession and commentators by overturning the decisions of the lower Courts to find that Mr Rawlings’ Will was valid. Whilst this might seem like the ‘fairest’ result, it could potentially widen the scope of rectification cases which have always traditionally being restricted to a few specific instances.
The Court took the view that an obvious oversight should not be allowed to overrule the testator’s wishes. This decision drew a parallel with the way that commercial contracts are interpreted.
Commentators have expressed concern that by widening the remit of the standard rectification cases, this will ‘open the floodgates’ for claimants to attempt to rectify imperfect Wills. I am sceptical that this will be the case given that the Rawlings circumstances were particular to the facts and in practice it is exceptionally rare for solicitors to make such an omission.
However, with more and more Wills providers entering the market place it is inevitable that more mistakes will be made and so could see an increase in claimants trying to widen the scope of rectification yet further.
Wills and Probate Department
0113 227 9388