The decision in Marley v Rawlings [2014] caused a bit of a stir in legal circles earlier this year. In short, when the Rawlings attended their solicitor to sign mirror wills they were inadvertently given each other’s will to sign, which they did. The mistake was only discovered after the death of the surviving spouse.

The wills, if valid, left everything to Mr Marley, a non-relative. Earlier this year, the Supreme Court held that the mistake of signing each other’s will could be rectified to ensure that Marley inherited as originally intended.

The judgment has been welcomed by many, as it represents the court adopting a commonsense or commercial approach to the rectification of wills. On the other hand, some would say that there is an underlying unease as lawyers worry whether this decision will open the floodgates for rectification claims. But has there really been a widening of the Administration of Justice Act 1982 and should we be concerned? To answer these queries, it is necessary to consider Lord Neuberger’s reasoning in Marley in juxtaposition with previous case law.

In Marley, Lord Neuberger (pictured) considered section 20(1) of the act (among other things) which requires: to rectify a will it must fail to carry out the testator’s intentions as a result of either a clerical error (paragraph a); or the failure of the drafter of the will to understand the testator’s instructions (paragraph b).

When considering the definition of ‘clerical error’, Lord Neuberger decided that the ordinary meaning of the term did in fact cover situations where persons had signed each other’s will. It was clearly an error in the usual sense, and he considered that it could be of a clerical nature because ‘it arose in connection with office work of a routine nature’.

He therefore found that there could be rectification and that this could be achieved by inserting the appropriate text from Mrs Rawlings’ will into Mr Rawlings’ will.

So has Lord Neuberger actually widened the definition of what constitutes a ‘clerical error’?

Before the 1982 act, the court only had the power to rectify a will in strict circumstances; that is, where there was direct evidence of the testator having not read the will and only then if the mistake could be corrected by striking out a part of the will (Harter v Harter (1873)). It was commonly held that, while the court could omit words where the testator did not have knowledge or approval of them, it could not insert words (re Morris (1970)).

Therefore, the enactment of the act finally provided practitioners with a legislative right to rectify, though it does not assist with the definition of what constitutes a ‘clerical error.’

Case law following the act attempted to provide a definition of ‘clerical error.’ The term was said to include: an error by anyone who drafts a will (re Williams (1985)) the failure to include certain powers in a will (Wordingham v Royal Exchange Trust Co Ltd (1992)), and even where there has not been an error per se but rather that the drafter has failed to apply his mind to the effect of certain words (Price v Craig (2006)).

What is clear is that even in 2006 the court was showing its willingness to ensure that the testator’s intentions were carried out and fairness was to prevail (Clarke v Brothwood (2006)).

In the earlier Court of Appeal decision in Marley, the court upheld the first instance decision that the will could not be rectified as the error was not a ‘clerical error’.

Lady Justice Black said: ‘This is a conclusion I have reached with great regret, but parliament made very limited changes to the law in 1982 and it would not be right for a court to go beyond what parliament then decided.’ Had this judgment not been overturned by the Supreme Court, it would have represented an unfair and inequitable outcome – in effect, almost taking the law back to the days before the 1982 act, when wills could only be rectified in strict circumstances.

So has the widening of the term ‘clerical error’ in Marley opened the floodgates for rectification claims otherwise bound to fail? The first case to have been decided since the Marley v Rawlings judgment is one that I acted in. Brooke v Purton & Ors [2014] concerned an estate worth approximately £7m. In his will, the testator had included a trust to contain the assets of his company, which formed the bulk of his estate.

The beneficiaries of the trust were his children. Unfortunately, after the testator’s untimely death, the claimants (my clients) discovered that the trust had been incorrectly drafted and the assets were unable to pass into the trust. This was as a result of a mistake by the solicitor who drafted the will, using the wrong nil-rate band precedent for married couples (the testator was not married).

David Donaldson QC, sitting as a deputy High Court judge, considered the Marley v Rawlings judgment when deciding whether the mistake in the will constituted a ‘clerical error’. He was able to reach the correct outcome by way of construction and therefore rectification was not necessary.

However, he made it clear that, although not required in this case, he would have found that the mistake by the solicitor could constitute a ‘clerical error’ (following Lord Neuberger’s judgment), and that he would have rectified the will if construction had not been available to him.

It is still too early to say whether the floodgates for rectification claims will be opened, but the court appears to be adopting a more flexible and commonsense approach to the rectification of wills. This new approach has the desire to uphold the testator’s intentions behind the will and avoid unjust and unintended outcomes – in other words, to ensure that justice prevails.

Tara McInnes is an associate in the dispute resolution team at Gardner Leader

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