A triumph of form over substance? The loosening grip of the testator’s intention

 In Wills

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Will making

Everyone makes mistakes.  Some mistakes have more serious consequences and ramifications than others. In the context of Will making, mistakes can have significant ramifications for testators, beneficiaries and the draftsman.  Given that the object of a Will is to articulate and give effect to the testator’s intentions, the question is how far will the Court go in remedying errors to give effect to that intention?

It is apparent from the decision of the Court of Appeal in Marley v Rawlings [2012] EWCA Civ 61 that the desire to give effect to the testator’s intentions has limits and that a stricter approach will be adopted to questions of formal validity, rather than requiring the Court simply to ask what the testator’s intentions were.

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Marley v Rawlings [2012] EWCA Civ 61

Mr and Mrs Rawlings wanted to make mirror Wills.  They each intended to leave their estates to each other and on the death of the survivor of them, the intention was to pass the estate to Terry Marley, who was not related to them but was treated by them as their son. They did not want to leave any part of their estate to their natural sons.  The provisions of the Wills were identical save that Mr Rawling’s Will made a gift to Mrs Rawlings and vice-versa. Unfortunately, Mr Rawlings executed the Will prepared for his wife and Mrs Rawlings executed the Will prepared for her husband.  On Mrs Rawlings’ death, no one noticed the error.  The error only came to light following the death of Mr Rawlings.

Mr Rawlings’ testamentary intention was crystal clear.  Having survived his wife, he wanted his estate to pass to Mr Marley.  If his Will was not admitted to probate that intention would be defeated and his estate would pass to his sons on intestacy.  Mr and Mrs Rawlings’ sons argued that the Will was not formally valid.  Alternatively they argued that it was invalid on substantive grounds, namely that Mr Rawlings did not know and approve of the contents of the Will.  Mr Marley argued that the Will was formally valid and that it could be rectified as necessary or construed so as to give effect to Mr Rawlings’ clear testamentary intention.

At first instance, Proudman J held that the Will fell at the first hurdle.  It did not satisfy the formality requirements of section 9 of the Wills Act 1837 because Mr Rawlings did not intend by his signature to give effect to the document as his Will. The Court of Appeal agreed with Proudman J.  Black LJ, who gave the lead judgment, held that the Will could not be rectified to enable it to comply with the formality requirements set out in s. 9 of the Wills Act 1837.  It was necessary first to determine whether the Will was formally valid before the remedy of rectification was available.  Black LJ held that the Will did not comply with section 9 because Mr Rawlings had not intended to give effect to the document that he signed as his Will.  She held that Mr Rawlings would have recognised that the document that he signed was his wife’s Will, a document that he never intended to execute.

Validity of Wills and the role of Testator’s Intention

There are two aspects to the validity of a Will: formal validity and substantive validity.  Both the High Court and the Court of Appeal decided Marley v Rawlings on the basis that the Will failed to comply with the formality requirements.  Once that conclusion had been reached, there was no possibility of giving effect to the testator’s intention as the document was not a “Will”.  None of the other remedies (such as construction or rectification) were available.  In basic terms, the document could not be construed in light of the testator’s intention to see whether it fulfilled the formality requirements: satisfying the formality requirements was necessarily the first step.

The formal requirements for a valid Will are found in section 9 of the Wills Act 1837 which provides:

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.

The Will in Marley v Rawlings  did not satisfy section 9(b), namely that the testator must intend by his signature to give effect to the Will.    It was insufficient that Mr Rawlings intended to give effect to a Will when he signed the document.  He did not intend to give effect to the document which had been prepared for his wife but intended to give effect to the Will that had been prepared on his behalf.  It was treated as largely irrelevant that the provisions were the same, save for the substitution of his wife’s name for his (and vice versa) wherever it appeared.

Black LJ stated that it was difficult to articulate why the matter should be approached differently from the situation where the name of a beneficiary has been erroneously stated so that the Will does not give effect to the testator’s intentions.  It is clear that the Courts and Parliament have increasingly strained to give effect to the true intention of the testator, on construction claims (by the admission of extrinsic evidence) or by making the remedy of rectification available.   In part, the Court relied on the fact that when considering questions of formal validity, the Court had to look at the intention of the testator objectively expressed: i.e.  questions of formal validity should be determined by what could be seen on the face of the Will.  If this was indeed the test, no extrinsic evidence would be admissible to determine whether or not the Will fulfilled the formality requirements of section 9.  However, it is clear that extrinsic evidence is admissible to determine whether or not the testator intended to authenticate the Will by his signature and so whether the Will complies with section 9: see Wood v Smith [1993] Ch 90.   If extrinsic evidence is admissible on this question, it then begins to look like a question of degree as to whether or not the error impinges on the formal validity of the Will.

The difficulty in Marley  was that in order to determine what the testator’s intentions were the Court had to go further than simply looking at the circumstances known to the testator at the time, as would have been the case in a construction claim,  to identify a beneficiary who had been misdescribed.  It was necessary to look at the document executed by Mrs Rawlings to ascertain what Mr Rawlings’s testamentary intentions were.  However, the fact that both Wills were executed at the same time was simply part of the surrounding circumstances which could be taken into account in construing the Will.  If, for example, Mr Rawlings name had appeared as “the testator” but the first bequest of Mr Rawlings’ Will was made to “my husband Mr Rawlings” there would have been no question of the Will being invalid nor would there have been any difficulty in correcting the error, whether by construction or rectification.  There seems to be little difference in substance between the two situations.  If the overriding principle is to give effect to the testator’s intentions, then putting oneself in the position of the testator ought to lead to the admission of the Will to probate.

The key to understanding the difference lies in considering the underlying basis for the formality requirements.  There is a qualitative difference between the question of whether a document qualifies as a Will at all and what the contents of that Will is. The testator’s armchair principle applies when the time comes for ascertaining what the provisions of the Will are, rather than ascertaining whether it is a valid Will at all.   The failure to comply with a formality requirement can and will defeat clear testamentary intentions of a testator.   Even though the intention is clear, the Court does not have power to give effect to it.  The purpose of the formality requirement is to ensure that the provisions of a Will are properly thought through and a genuine expression of the testator’s wishes.  The fact that on occasion the intention of the testator may be defeated, is the price to be paid for this requirement.

The question can be tested by considering what would have happened had Mr Rawlings executed a stranger’s Will.  That Will would clearly not have been admitted to probate even though Mr Rawlings did intend to execute Will when he executed it. It could be said that the stranger’s Will would not be admitted to probate because Mr Rawlings did not know and approve of the contents of it. However, this would rob section 9(b) of any content.  The provision does not require that the testator give effect to the document as a Will (as distinct from a contract) but rather that he intended to give effect to the Will and it is implicit in that that he intended to give effect to it as his Will.

Conclusion

Had Marley been decided differently it would have been a classic case of hard cases making bad law.  There is a real distinction to be drawn between formal validity of Wills and determining the meaning of a Will which has been admitted to probate.  This approach also recognises the practical reality of admitting Wills to probate in common form: the probate registry needs to be able to see at a glance whether the name of the testator matches the signature on the Will.  The effect of the formality requirement has in this case defeated the clear intention of the testator.  If, as it should be, the policy of the law is to give effect to the intention of the testator the time may now have come to amend the Wills Act to include a saving provision, similar to that in the Saskatchewan Wills Act, that the court can give effect to a Will even if not executed in accordance with the formality requirements if satisfied that it gives effect to the intentions of the deceased.

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