Marley v Rawlings & Another | XXIV Old Buildings

A husband and wife had made identical wills leaving the entire estate to the other and, in the event the other had pre-deceased, then to M who they treated as their son. An oversight by the solicitor meant that they did not execute their own will but each other’s wills instead. The wife died in 2003 and the husband in 2006 without the error being spotted until after their deaths. M sought to uphold the husband’s will on the basis of interpretation of the will, alternatively rectification.

In the Supreme Court, the rectification claim under s.20(1)(a) of the Administration of Justice Act 1982 (“the Act”) as a “clerical error” succeeded. Rectification under that provision applied to a wholesale correction of a will that was not formally valid. The phrase “clerical error” was to be widely interpreted as including a mistake arising out of routine office work such as preparing, filing, sending or organising the execution of a document. The error in the present case could be characterised as a “clerical error” because it arose out of routine office work.

The Supreme Court also took the chance to explain, obiter, that a will was to be interpreted in the same way as a contract. Thus, the object of interpretation was to find the intention of the testator from the words in the will in the light of the natural and ordinary meaning of the words, the overall purpose of the document, all other provisions in the document, and the facts known or assumed by the testator at the time the document was executed. In addition, by virtue of s.21(1) and 21(2) of the Act, direct evidence of the testator’s actual intentions (eg what he told the drafter of the will or some other person) were admissible to interpret the will.

The decision on the meaning of “clerical error” is surprising but helpful. It widens the circumstances in which the Court can rectify wills to uphold the true intention of the testator. The restatement of the principles governing the interpretation of wills, even though obiter, is also a helpful clarification.