Marley v Rawlings and another

JurisdictionEngland & Wales
JudgeLord Clarke,Lord Sumption,Lord Neuberger,Lord Carnwath,Lord Hodge
Judgment Date22 January 2014
Neutral Citation[2014] UKSC 2
Date22 January 2014
CourtSupreme Court
Rawlings and another

[2014] UKSC 2


Lord Neuberger, President

Lord Clarke

Lord Sumption

Lord Carnwath

Lord Hodge


Hilary Term

On appeal from: [2012] EWCA Civ 61


Robert Ham QC Teresa Rosen Peacocke (Instructed by Hugh Cartwright & Amin)


Nicholas Le Poidevin QC Alexander Learmonth (Instructed by Gillan & Co)

Heard on 3 December 2013

Lord Neuberger ( with whom Lord Clarke, Lord Sumption and Lord Carnwath agree)


A husband and wife each executed the will which had been prepared for the other owing to an oversight on the part of their solicitor; the question which arises is whether the will of the husband, who died after his wife, is valid.

The factual and procedural background
The factual background

On 17 May 1999, Alfred Rawlings and his wife, Maureen Rawlings, were visited by their solicitor to enable them to execute the wills which he had drafted on their instructions. The wills were short and, except for the differences required to reflect the identity of the maker, they were in identical terms. Each spouse left his or her entire estate to the other, but, if the other had already died or survived the deceased spouse for less than a month, the entire estate was left to the appellant, Terry Marley, who was not related to them but whom they treated as their son.


The will prepared for Mr Rawlings was in these terms:

"This is the last will of me ALFRED THOMAS RAWLINGS of 15A Hillcrest Road Biggin Hill Kent TN16 3UA

1. I REVOKE all former wills and testamentary dispositions.

2. IF MY wife MAUREEN CATHERINE RAWLINGS … survives me by a period of one calendar month then I appoint her to be the sole Executrix of this my will and subject to my funeral and testamentary expenses fiscal impositions and all my just debts I leave to her my entire estate.

3. IF MY said wife MAUREEN CATHERINE RAWLINGS fails to survive me by a period of one calendar month I appoint TERRY MICHAEL MARLEY … to be the sole Executor of this my will and subject to my funeral and testamentary expenses

fiscal impositions and all my just debts I leave to him my entire estate.

IN WITNESS whereof I the said ALFRED THOMAS RAWLINGS have hereunto set my hand the … day of … 1999:

SIGNED by the testator in our presence and then by us in his:

Signature, name, address … Signature, name, address … of attesting solicitor: of attesting secretary:

….. …..".


The will prepared for Mrs Rawlings was in identical terms save that it was, of course, in her name instead of that of her husband, so that "ALFRED THOMAS RAWLINGS" was replaced by "MAUREEN CATHERINE RAWLINGS", and "my [said] wife MAUREEN CATHERINE RAWLINGS", "her", "his", and "testator" were respectively replaced by "my [said] husband ALFRED THOMAS RAWLINGS", "him", "her", and "testatrix".


By an oversight (which he candidly admitted in his witness statement in these proceedings), the solicitor gave each spouse the other's draft will, and nobody noticed. Accordingly, Mr Rawlings signed the will meant for Mrs Rawlings, and Mrs Rawlings signed that meant for Mr Rawlings, and the solicitor and his secretary attested the signature on each document, which was then dated 17 May 1999.


Mrs Rawlings died in 2003, and her estate passed to her husband without anyone noticing the mistake. However, when Mr Rawlings died in August 2006, the error came to light.


At the time of his death, Mr Rawlings was a joint tenant with the appellant of the house in which they both lived, so the tenancy passed to the appellant through the doctrine of survivorship. In addition, there was some £70,000 in Mr Rawlings's estate.


The respondents, Terry and Michael Rawlings, Mr and Mrs Rawlings' two sons, challenged the validity of the will which Mr Rawlings had signed. If it was valid, the appellant would inherit the £70,000 under its terms, whereas if it was invalid, Mr Rawlings would have died intestate, and the respondents would inherit the £70,000.

The procedural background

The appellant began probate proceedings, which came before Proudman J. She gave a judgment based on the understanding that his case was that Mr Rawlings's will ("the Will") should be rectified so as to record what he had intended, ie so as to contain what was in the will signed by his wife ("the wife's Will"), and that probate should be granted of the Will as so rectified.


The Judge dismissed Mr Marley's claim, on the grounds that (i) the Will did not satisfy the requirements of section 9 of the Wills Act 1837 ("the 1837 Act"), and (ii) even if it had done so, it was not open to her to rectify the Will under section 20 of the Administration of Justice Act 1982 ("the 1982 Act") — [2011] 1 WLR 2146.


The appellant appealed to the Court of Appeal, who upheld the decision of Proudman J on the first ground, namely that the Will did not satisfy section 9(b) of the 1837 Act (as well on at least one other ground), and they did not find it necessary to consider the second ground — [2013] Ch 271.


The appellant now appeals to this court.

The legal background

There are, unsurprisingly, a large number of cases in which courts haves had to consider the validity of a will and the interpretation of a will, and a few cases where rectification of a will has been considered. The formalities have for a long time largely been laid down by the 1837 Act. By contrast, until very recently at any rate, the interpretation and possible rectification of wills was an issue which Parliament was content to leave to the judges.

The formal requirements of a will

So far as validity is concerned, the centrally important statutory provision, both in general terms and for present purposes, is section 9 of the 1837 Act ("section 9"). That section has been amended or re-enacted on a number of occasions. Most recently, it was re-enacted by section 17 of the 1982 Act, which is headed "Relaxation of formal requirements for making wills".


In its current form, section 9 is headed "Signing and attestation of wills", and it provides as follows:

"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."


In addition to these statutory requirements, as Chadwick LJ explained in Fuller v Strum [2002] 1 WLR 1097, para 59:

"It is not, and cannot be, in dispute that, before admitting the document to probate, the judge needed to be satisfied that it did truly represent the testator's testamentary intentions; or, to use the traditional phrase, that the testator 'knew and approved' its contents. Nor is it in dispute that, if satisfied that the testator knew and approved of part only of the contents of the document, the judge was bound, before admitting the document to probate, to require that those parts with respect to which he was not so satisfied be struck out".

Interpretation of wills

Until relatively recently, there were no statutory provisions relating to the proper approach to the interpretation of wills. The interpretation of wills was a matter for the courts, who, as is so often the way, tended (at least until very recently) to approach the issue detached from, and potentially differently from, the approach adopted to the interpretation of other documents.


During the past forty years, the House of Lords and Supreme Court have laid down the correct approach to the interpretation, or construction, of commercial contracts in a number of cases starting with Prenn v Simmonds [1971] 1 WLR 1381 and culminating in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900.


When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions. In this connection, see Prenn at 1384–1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 8, per Lord Bingham, and the survey of more recent authorities in Rainy Sky, per Lord Clarke at paras 21–30.


When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, "No one has ever made an acontextual statement. There is always some context to any utterance, however meagre." To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, that "[c]ourts will never construe words in a vacuum".


Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne...

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