Marley v Rawlings and Another

JurisdictionEngland & Wales
JudgeBlack LJ,Mr Rawlings' will read,Kitchin LJ
Judgment Date02 February 2012
Neutral Citation[2012] EWCA Civ 61
Docket NumberCase No: A3/2011/0441
CourtCourt of Appeal (Civil Division)
Date02 February 2012
Between:
Marley
Appellant
and
Rawlings & Anr
Respondents

[2012] EWCA Civ 61

Before:

The President of the Queen's Bench Division

Lady Justice Black

and

Lord Justice Kitchin

Case No: A3/2011/0441

Hc10c01702

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CHANCERY DIVISION

MRS JUSTICE PROUDMAN

Royal Courts of Justice

Strand, London, WC2A 2LL

Ms Teresa Rosen Peacocke (instructed by Brunswick Law) for the Appellant

Mr Nicholas Le Poidevin QC & Mr Alexander Learmonth (instructed by Gillan & Co) for the Respondents

Hearing date : 19th October 2011

Black LJ
1

On 17 May 1999 a married couple, Alfred Thomas Rawlings and Maureen Catherine Rawlings, had an appointment with their solicitor at their home for the purpose of executing the wills that he had drafted for them. The wills were very short and, except for the obvious differences necessary to reflect the identity of the maker, were in exactly the same terms. Each spouse left his or her entire estate to the other spouse or, if the spouse failed to survive him or her by one calendar month, to Terry Michael Marley who was not related to them but whom they treated as their son.

Mr Rawlings' will read

" This is the last will of me ALFRED THOMAS RAWLINGS of [address].

1. I REVOKE all former wills and testamentary dispositions.

2. IF MY wife MAUREEN CATHERINE RAWLINGS of [address] 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 of [address] 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:- [space for witnesses]"

3

In Mrs Rawlings' will, references to Maureen Catherine Rawlings were substituted for the references to Alfred Thomas Rawlings, references to "my wife" were replaced with references to "my husband", and references to "her" were replaced with references to "him". Instead of referring to the "testator", the reference was to the "testatrix".

4

By mistake, Mr Rawlings signed the will meant for Mrs Rawlings and Mrs Rawlings signed the one meant for Mr Rawlings. The solicitor and his secretary attested their signatures. No one noticed the error then, or on the death of Mrs Rawlings which occurred in 2003.

5

When Mr Rawlings died in August 2006, the error came to light. Mr Rawlings owned the property in which he had lived with Mr Marley on a joint tenancy so that passed to Mr Marley by survivorship. However, there was some £70,000 net in the estate and a dispute arose between Mr Marley on the one hand and Mr and Mrs Rawlings' two sons, Terry and Michael Rawlings, on the other as to whether the will that Mr Rawlings had signed (to which I will refer hereafter as "the will") was a valid will in which case Mr Marley would inherit or whether he had, in fact, died intestate in which case the two sons would inherit.

6

Mr Marley began proceedings in the Chancery Division for probate of the will which came before Proudman J. Her judgment records that the claim advanced before her was only for rectification of the will and probate in solemn form of the will as rectified though counsel for Mr Marley, Ms Teresa Peacocke, told us that it had not been conceded that the will could not be admitted to probate as it was. In any event, on 3 February 2011 the judge dismissed Mr Marley's claim. It is against that determination that he now appeals, the two Rawlings sons being the respondents to the appeal. If Mr Marley fails in the appeal, he will look to Mr and Mrs Rawlings' solicitor for damages reflecting the value of the estate that he has lost.

7

There can be no doubt as to what Mr and Mrs Rawlings wanted to achieve when they made their wills and that was that Mr Marley should have the entirety of their estate and their sons should have nothing. Unfortunately, that certain knowledge is not what determines the outcome of this appeal. The answer is contained in the law relating to the making and rectification of wills.

The statutory framework

a) Wills Act 1837 in its present form

8

The first port of call is the Wills Act 1837 which I will set out as amended over time.

9

Section 3 provides that:

"It shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in manner herein-after required, all real estate and personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed, or disposed of, would devolve upon his executor or administrator…."

10

Section 1 deals with the meaning of certain words in the Act and includes the following elucidation of the word "will":

"The words and expressions herein-after mentioned, which in their ordinary signification have a more confined or a different meaning, shall in this Act, except where the nature of the provision or the context of the Act shall exclude such construction, be interpreted as follows; (that is to say) the word "will" shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to an appointment by will of a guardian of a child, and to any other testamentary disposition;…"

11

Section 9 deals with the signing and attestation of wills. So far as is material, it is as follows:

" 9 Signing and attestation of wills

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) [requirements of the witnesses]"

b) Some history of the Wills Act and other provisions relating to wills

12

In order to understand the jurisprudence concerning the Wills Act, it is necessary to know a little about the history of the statute itself, there having been significant amendments to it since it was passed in 1837, and about other developments in the law.

13

A fairly early amendment was to relax the requirement that the will be signed by the testator at the foot or end of it. As originally drafted, section 9 read:

"no Will shall be valid unless it shall be in Writing and executed in the manner herein-after mentioned; (that is to say,) it shall be signed at the Foot or End thereof by the Testator, or by some other Person in his Presence and by his Direction; and such Signature shall be made or acknowledged by the Testator in the Presence of Two or more Witnesses present at the same Time, and such Witnesses shall attest and shall subscribe the Will in the Presence of the Testator, but no Form of Attestation shall be necessary."

14

The Wills Act Amendment Act 1852 provided that a will could be valid if the signature was

"so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will;…."

15

There was further relaxation of the formal requirements for making wills when section 9 in its current form was substituted for the original section 9 by the Administration of Justice Act 1982. The changes included the abandonment of all direction as to where on the document the testator's signature had to be, it only being required now that "it appears that the testator intended by his signature to give effect to the will".

16

The 1982 Act also introduced, for the first time, provisions which permitted rectification of a will by inserting new words into it as opposed to omitting from probate words of which the testator did not know and approve. So far as material to this appeal, those provisions are set out below under the next heading.

Sections 20 and 21 of the Administration of Justice Act 1982 ("the 1982 Act")

17

Section 20(1) establishes the power to order rectification. It reads:

"20 Rectification

(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

(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 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."

18

Section 21 deals with the interpretation of wills. It reads:

"21 Interpretation of wills—general rules as to evidence

(1) This section applies to a will—

(a) in so far as any part of it is meaningless;

(b) in so far as the language used in any part of it is ambiguous on the face of it;

(c) in so far as evidence, other than evidence of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation."

The trial judge's reasoning

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5 books & journal articles
  • Rectification
    • United Kingdom
    • Wildy Simmonds & Hill A Practitioner's Guide to Probate Disputes - 2nd edition Contents
    • 29 August 2022
    ...his wife’s will and the wife her husband’s, failed both at first instance and on appeal to the Court of Appeal. The Court of Appeal ([2012] EWCA Civ 61) held that the will was not valid as the formalities in section 9 of the Wills Act 1837 were not complied with and that, when the testator ......
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    • Wildy Simmonds & Hill A Practitioner's Guide to Probate Disputes - 2nd edition Contents
    • 29 August 2022
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    • Wildy Simmonds & Hill A Practitioner's Guide to Probate Disputes - 2nd edition Contents
    • 29 August 2022
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