1975 – 2022: An interview with Queer Strike
The sad case of Marley v Rawlings, where a couple accidentally signed each other’s Wills really caught the public’s imagination.
It was a simple error with catastrophic results – the Wills were invalid and so the man they had loved dearly and treated as their son received nothing, whereas their biological children, to whom they were not close, got everything.
Terry Marley, the disappointed beneficiary, took his case to the High Court and the Court of Appeal without success. The Courts held that the requirements for a valid Will were extremely strict and, although Mr and Mrs Rawlings’ wishes were very clear, they were powerless to act.
Now the highest Court in the land, the Supreme Court, has come to Mr Marley’s rescue. In a judgment given on 22 January 2014, all five judges unanimously upheld his appeal.
The lead judgment was given by Lord Neuberger, the President of the Supreme Court. His view was that the law had been very generous over the past 40 years in fixing mistakes in commercial contracts. He saw no reason why it shouldn’t be the same for Wills. This means that the intention of the parties is key and it involves an exercise in common sense and looking at all the available evidence. It is not just about the words on the page.
Section 20 of the Administration of Justice Act 1982 allows a Will to be ‘rectified’ where it does not carry out the testator’s wishes due to a ‘clerical error’. Until now, ‘clerical error’ has been defined very narrowly and limited only to mistakes in copying and writing. Lord Neuberger said there was no reason for this narrow definition. A ‘clerical error’, he said, was an error in any clerical task, such as filing, preparation or even, as in this case, organising the execution of a document.
Lord Neuberger said that where there was a clerical error, this error could be rectified even if it involved rewriting the entire document. There was therefore no reason why all of the wording in the Will drafted for Mrs Rawlings, which has been signed by her husband, could not be replaced by the wording in the Will drafted for Mr Rawlings. The end result was a Will which did what it was supposed to do.
The High Court and Court of Appeal had not really considered whether the Will could be rectified because they had concluded there was no Will in the first place. In order to be ‘formally valid’, a Will must comply with the precise requirements of section 9 of the Wills Act 1897. This section demands that the Will must be signed by the testator in the presence of two witnesses. Because these requirements had not been satisfied, that was the end of the story as far as they were concerned.
However, Lord Neuberger held that the requirements were satisfied. Mr Rawlings had intended to make a Will and had signed it in front of witnesses – the fact that the Will had his wife’s name on it did not matter under these circumstances. He said that interpretation of the Will, i.e. what the Will actually said, was nothing to do with whether or not it was ‘formally valid’, i.e. whether it complied with section 9.
The point is that the wording of a Will could be complete ‘nonsense’ but still be a ‘Will’ for the purposes of section 9. Whether the Court would be able to rectify this is a separate matter for the Court to consider. In this case, the Court found that it clearly could.
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