The sensible approach to mistakes in wills is at odds with the harsh line on procedural errors.

The Supreme Court’s decision in Marley v Rawlings at the end of last month has stunned many private client solicitors.

As readers will know, the court unanimously upheld a testator’s intention even though the husband and wife had inadvertently signed one another’s wills by mistake.

It is not just the considerable extension of what is meant by a ‘clerical error’ that has surprised practitioners. What is seen as an even greater leap is the way in which Lord Neuberger – who has a commercial background himself – has introduced commercial concepts into the wills arena.

He said: ‘When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions.’

He added: ‘When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context.’

I know many private client solicitors find this development quite worrying, and a far cry from the clear cut – if sometimes harsh – approach they are used to. The fear is that this new judgment will lead to too much uncertainty.

What’s more, Neuberger seems to invite the use of witness evidence (albeit not ‘subjective’ evidence) as to what the testator had really intended in their will – a potential can of worms if ever there was one.

He says: ‘In relation to a will, or a provision in a will… it is possible to assist its interpretation by reference to evidence of the testator’s actual intention (for example by reference to what he told the drafter of the will, or another person, or by what was in any notes he made or earlier drafts of the will which he may have approved or caused to be prepared).’

No doubt lawyers are right when they say that the position in relation to errors in wills is now a lot less certain than it was before the ruling last month. But, let’s not forget, it is also a lot fairer. How appalling would it have been if the intention of the testator had been utterly denied because of what was very plainly a complete mistake?

Neuberger’s more ‘contractual’ approach quite literally injects some ‘common sense’ into the issue. If it places the actual wishes of the testator above compliance with technical details, all the better in my view.

Of course, the Supreme Court ruling, which seems to me to be a triumph of justice and fairness over the need to dot every ‘i’ and cross every ‘t’ (I know many lawyers will disagree with me on that), comes just a month after the Appeal Court’s infamous judgment in Mitchell. The subject matter of the two cases was completely different, but still, at the core of the Mitchell ruling was the same tension between fairness on the one hand, and technical compliance on the other.

In Marley, a mistake in a will signature went unpunished by the Supreme Court, but in Mitchell, an error in failing to file a costs budget on time was dealt with harshly by the Court of Appeal. The two courts seem to be travelling in different directions.

So while litigators must now become accustomed to the fact that their every mistake is likely to be keenly punished, those who draft wills for a living have, it seems, been cut a little slack.

  • The issues in Marley v Rawlings will be considered in detail in a future edition of PS, the journal of the Law Society’s Private Client Section

Rachel Rothwell is commissioning editor of PS