Rectification – clerical error does not cover incorrect execution

 In Wills

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The supervising of the execution of husband and wife mirror Wills is usually stress free but in the drive to be friendly the danger is we all too easily get distracted by talking to our clients and the easiest job becomes a nightmare. The recent case of Marley v Rawlings [2011] EWHC 161 is such a sad tale.


Since 1 January 1983 it is possible to arrange for a rectification of a Will in certain circumstances as s.20 Administration of Justice Act 1982 applies to deaths on or after that date:

“20 (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

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b. of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.

(2) An application for an order under this section shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out.”

Not all cases of negligence can be remedied by rectification but certainly most of the cases where rectification is a remedy will involve a mistake which must therefore be negligent. It is therefore wise to consider agreeing to bear the costs of the rectification action and even co-operate if a mistake has been made (subject to agreement with your insurers) in an effort to minimise any loss incurred otherwise as a result of your negligence.

The facts

In Marley v Rawlings Mr & Mrs Rawlings intended to make simple Wills in which they each left their whole estate to each other on the first death and then to Terry Marley on the second death. Mr Marley was treated by them both as an adopted son. They were not at all close to their natural children and intended to leave them nothing.

On 17 May 1999 their solicitor attended upon the Rawlings at their home taking with him his secretary so that he and the secretary could both act as witnesses to the respective Wills.

Sadly, by mistake, Mr Rawlings executed the Will meant for his wife and she executed the Will meant for Mr Rawlings. In each case the signatures were witnessed by the solicitor and his secretary and the mistake was not noticed by anyone.

The family home was owned by Mr & Mrs Rawlings and Mr Marley jointly as joint tenants. In addition there were other assets worth approximately £70,000.

Mrs Rawlings died first in January 2003 and the error was not noticed then as presumably there was no need to prove her Will, all the assets passing by survivorship. Mr Rawlings died on 21 August 2006 and it was at this stage that the mistake came to light.

If the Wills are invalid, then Mr & Mrs Rawlings natural sons, Terry and Michael Rawlings, the claimants in the case, inherit under the intestacy rules. Mr Marley brought this case to argue that the Wills should be rectified as it was a ‘clerical error’ which occurred and which the court has jurisdiction to put right. If his claim for rectification fails then he will pursue the solicitor in negligence.

The arguments

The Claimants counsel reviewed the case law across English and Commonwealth decisions. In particular he relied on a number of decisions in other jurisdictions in which relief was given in cases with similar facts to this one where the testator signed the wrong Will. In particular the case of Guardian Trust & Executors Company of New Zealand Ltd v Inwood & Others [1946] NZLR 614 which supported a Will where the physical document was not the paper the testatrix in that case intended to sign but it was a paper which included everything which she wished to include in her Will apart from the Christian names of her sister being omitted.

This case has been followed in other countries. In Re Vautier 2000 JLR 351 the Royal Courts of Jersey summarised the situation by saying that the common law of England recognised a power in the court to delete words from a Will which were included by mistake but did not allow for rectification by altering or adding to the wording of the Will. It specifically went on to hold that it could order rectification of Wills mistakenly signed in similar circumstances to the present case but this was because the wording of the Wills Act 1837 had no application in Jersey and so it was not bound by English cases which were decided on that law. However, s.20 Administration of Justice Act 1982 does provide power for the English Court to rectify a Will in order to carry out the testator’s intentions where there has been a mistake.

The decision

Mrs Justice Proudman felt that the complete answer to this case lay with s.9 (b) Wills Act 1837. This provides that no Will shall be valid unless ‘it appears that the testator intended by his signature to give effect to the Will….’ In her judgement Mr Rawlings did not intend by his signature to give effect to the Will which he signed. If he was asked whether he did he would have said ‘no of course not it is my wife’s Will’.

She did not agree with the judges in Re Vautier and felt that the suggestion that s.20 Administration of Justice Act 1982 was the complete solution was not argued in detail.

The point was made that s.20 does not provide a complete solution to rectification for all problems; rather it is restricted to cases where there has been a failure to understand the client’s instructions (which was not relevant in this case) or clerical error.

‘Clerical error’ is often construed widely but Mrs Justice Proudman believed that it could not extend to something beyond the wording of the Will. There was no error of drafting, no omission of words or mis-use of words in the Wills both were correctly expressed, it was simply that the wrong Will was signed.

She therefore decided that s.20 did not provide a solution to the problem and the Will was not valid in accordance with s.9 (b) Wills Act 1837.

Practice points

The moral of the story is to read over the Will to the client before asking them to sign even though it is a mirror version of one you have just read over to the other spouse. Reading out loud will always make this kind of potential mistake obvious so that it does not occur.

However, it does seem a harsh outcome. Surely, if the testator was asked ‘did you intend to make this Will’ as far as its content of the gifts was concerned he would have said ‘yes that is the jist of it I want ultimately Mr Marley to have our joint estate’ as opposed to ‘no this is completely wrong I prefer it to fail in favour of intestacy’.

Perhaps we have been a little complacent and assumed that with earlier decisions on rectification usually stretching ‘clerical error’ to put right mistakes which should have been spotted but which when not spotted resulted in an outcome unintended by the testator – e.g. Clarke v Brothwood [2006] EWHC 2939 rectification could put it right.

Clearly this is not so in every case. Although it could never have been intended by the Rawlings to die intestate, given their family relationships, in this case, because there was no clerical error in the wording of the body of the Will, there was no opportunity to put the mistaken execution of the Wills right and so intestacy resulted.

© Gill Steel Lawskills Ltd

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