Readers will undoubtedly be familiar with the facts of this case, Marley (Appellant) v Rawlings [2014] UKSC 2. Mr and Mrs Rawlings signed wills prepared by a solicitor which were in identical terms. Each left everything to the other, with a substitutional gift to Terry Marley, who was not related to them but whom they treated as their son. Sadly, when it came to signing the will, the solicitor gave them each the will intended for the other and no one noticed.

Mrs Rawlings died first, but as everything passed by survivorship to her husband, her will was not proved and the mistake was not discovered until her husband died. The error was significant as, if the will was invalid, Mr Rawlings was intestate and the estate would pass to his two sons, not to Mr Marley.

At first instance and in the Court of Appeal the will was held to be invalid and incapable of rectification under section 20 of the Administration of Justice Act 1982.

The law

Section 9 provides that ‘no will shall 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 will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either:

(i) attests and signs the will; or

(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.’

Section 20(1) provides:

‘(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.’

Lord Neuberger (pictured) (with whom the other members of the Supreme Court agreed) identified three objections to rectifying the will: (1) the correction which needed to be made to validate the will was too extreme to amount to rectification; (2) section 20 only applies to a ‘will’, and, because the will, as executed, did not satisfy section 9 and/or because it was not executed with Mr Rawlings’s knowledge and approval of its contents, it was not a ‘will’; and (3) rectification was not available for a mistake of this type.

He rejected the first objection outright: ‘The fact that it can be said that the claimed correction would effectively involve transposing the whole text of the wife’s will into the will does not prevent it from being “rectification” of each of the wills’. It was a classic claim for rectification since it was clear what the testator wanted to achieve.

The second objection was more serious. Lord Neuberger accepted that interpreting the will at face value, it was plainly not executed by Mr Rawlings with his full knowledge and approval. However, he was persuaded that it did not fall foul of sections 9(a) or (b). While it was clear, even on a cursory reading of the will, that something has gone seriously wrong, Mr Rawlings signed it, and did so with the intention of it being his last will and testament. Thus, whatever else might be said about the document, it was unambiguously intended to be a formal will, and it was signed by Mr Rawlings, in the presence of two witnesses, on the basis that it was indeed his will.

Section 9 is concerned only with formalities. The fact that a will may face problems in terms of interpretation or even validity does not mean that it cannot satisfy the formality requirements. A document admitted to probate may be found by a court of construction to have no operative effect but that does not affect its formal status.

Although the will purported in its opening words to be the will of Mrs Rawlings, it could not be hers, as she did not sign it; as it was Mr Rawlings who signed it, it could only be his, and it was he who was the testator for the purposes of section 9.

Accordingly, Lord Neuberger accepted that section 9(a) was satisfied. The will made no sense if taken at face value but that was a matter for ‘a court of construction’.  

There was no doubt that it was Mr Rawlings’s intention at the time he signed the will that it should have effect, and so Lord Neuberger accepted that section 9(b) was also satisfied. Therefore rectification was available.

Note, however, that Lord Neuberger went further than this and said, at [60], ‘it does not appear to me that a document has to satisfy the formal requirements of section 9, or of having the testator’s knowledge and approval, before it can be treated as a “will” which is capable of being rectified pursuant to section 20’.

The next issue was whether there had been a ‘clerical error’ allowing the court to rectify the will by replacing the text of the will signed by Mr Rawlings with that contained in the will signed by his wife.

‘Clerical error’ up to now has been confined to mistyping or cutting and pasting wrongly. Giving someone the wrong document is rather different. However, Lord Neuberger said that the expression is not one with a precise or well-established meaning. A mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending or organising the execution of a document are activities which are properly described as ‘clerical’, and a mistake in connection with those activities, such as wrongly filing a document or putting the wrong document in an envelope, can properly be called ‘a clerical error’.

The decision is worth reading for some interesting comments on the correct way to approach interpretation of wills – in the same way as a contract or patent. At [20] Lord Neuberger said: ‘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.’ However, the Supreme Court declined to express a view on whether the two wills could simply have been read together to establish the correct meaning.

Many people will wonder about the costs in this case. The amount passing under the will was £70,000. Not a lot for a trip to the Supreme Court.

Lesley King, University of Law