Marley v Rawlings and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Proudman |
| Judgment Date | 03 February 2011 |
| Neutral Citation | [2011] EWHC 161 (Ch) |
| Docket Number | Case No: HC 10C01702 |
| Court | Chancery Division |
| Date | 03 February 2011 |
[2011] EWHC 161 (Ch)
Before: Mrs Justice Proudman
Case No: HC 10C01702
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Philip Noble (instructed by Brunswick Law solicitors) for the claimant
Alexander Learmonth (instructed by Gillan & Co solicitors) for the defendants
Hearing date: 1 February 2011
Mrs Justice Proudman :
This is a claim for rectification of a will dated 17 May 1999 executed by Alfred Thomas Rawlings who died on 21 August 2006 and for probate in solemn form of the will as so rectified.
An unfortunate mistake was made at the time of the execution. On 17 May 1999 Mr and Mrs Rawlings' solicitor attended on them at their home with his secretary for the purpose of executing the two wills which he had drafted for Mr and Mrs Rawlings. The wills were in simple mirror form. Each left the other his or her entire estate, but in the event that the spouse failed to survive, the whole was left to Terry Marley who was (or was treated as) their adopted son. Mr and Mrs Rawlings had two natural children (the defendants) but were not close to them and there is no doubt that the intention was to benefit Mr Marley alone on the death of the survivor. Their house was vested in the three of them as beneficial joint tenants and the rest of the estate is worth some £70,000 net.
By mistake Mr Rawlings executed the will meant for Mrs Rawlings and Mrs Rawlings executed the will meant for Mr Rawlings. Both signatures were attested by the solicitor and the secretary and no-one noticed the error. Indeed I am told that it was not picked up on the death of Mrs Rawlings in January 200I do not know which of the wills was admitted to probate on Mrs Rawlings' death but it may be that all assets were jointly owned so that neither was as probate was unnecessary. At all events it is only now, after Mr Rawlings' death on 21 August 2006, that the mistake has come to light. In the event of intestacy, Mr and Mrs Rawlings' sons Terry and Michael Rawlings inherit the estate. If the present claim does not succeed, Mr Marley is holding the solicitor responsible for the error.
Theclaim
A pleaded claim based on construction of the wills was not pursued before me. The claim is now based solely on rectification under s. 20 of the Administration of Justice Act 1982. Subsections (1) and (2) provide as follows:
"(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 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."
Mr Noble on behalf of the claimant submitted that rectification affords a proper means of reflecting the wishes and intentions of Mr and Mrs Rawlings. He said that in recent years the approach of the courts in this and Commonwealth jurisdictions has been to give effect to the true wishes of a Testator where the evidence is plain that a mistake has been made.
Prior to s. 20 of the 1982 Act the Court had no power to insert words in wills by means of rectification. Rectification in what was described (at 81F of In re Morris [1971] P 62) as "a broad sense" could only be ordered, through the omission from probate of words of which the Testator did not know and approve. Mr Noble submitted that since enactment of s. 20 the court could give effect to the Testator's dispositive intentions by rectification and not merely and artificially through omission.
Mr Noble relied on the development of the law of rectification, and in particular on the decision of Chadwick J in In re Seligman [1996] Ch 171. Chadwick J postulated three questions for the court. First, what were the Testator's intentions with regard to the dispositions in respect of which rectification is sought. Secondly, whether the will is so expressed that it fails to carry out those intentions. Thirdly, whether the will is expressed as it is in consequence of either (a) a clerical error or (b) a failure on the part of someone to whom the testator has given instructions for the will to understand those instructions.
In Wordingham v. Royal Exchange Trust Company Limited [1992] Ch 412 it was held that the expression 'clerical error' meant an error in the process of recording the intended words of the Testator in the drafting or transcription of the will. It was the nature of the error rather than the person who made it that rendered it a clerical error. In Seligman it was explained that the jurisdiction to correct clerical errors is not limited to errors in transcription but also extends to cases where the person drafting the will has not appreciated the significance or effect of the introduction (or deletion) of a particular provision. There is a distinction between that situation and a failure by the testator to appreciate the effect of words deliberately used, where rectification is not available.
Mr Noble submitted that the present case is a clear one of clerical error within Chadwick J's formulation. He relied on Re Price [2006] EWHC 2561 (Ch) and Re Clarke [2006] EWHC 2939 (Ch) as examples of the Court taking a broad and purposive approach to the application of s. 20. He distinguished, as having been overtaken by the power conferred by s. 20 to rectify, the decisions in In the Goods of Hunt (1875) LR 3 P&D 250 (in which two sisters had made similar, but not mirror, wills and each executed that of the other) and Re Meyer [1908] P 353 (in which two sisters made mirror codicils and again executed that of the other), and in both of which cases the disposition was held to be invalid.
Mr Noble particularly relied on a number of decisions of judges in other jurisdictions in which relief has been given in similar circumstances to the present where the testator signed the wrong will.
The first is a decision of the New Zealand Court of Appeal, Guardian Trust and Executors Company of New Zealand Ltd v. Inwood and Others [1946] NZLR 614 in which the Court admitted the will to probate, omitting words naming the testatrix. Fair J delivering the judgment of the whole court said at 623,
"but it is submitted on behalf of the defendants, who are entitled under the intestacy, that it is not admissible to probate on the ground that it was not executed animo testandi—that is, that the testatrix did not intend to sign this document and that this document was never intended by her or anyone to be her will. This would appear, upon careful examination, to be a very technical basis for its rejection, and upon an exact appreciation of the true facts, to lack substance. True, the physical document was not the paper that the testatrix intended to sign, but it was a paper that contained everything that she wished included in the paper she intended to sign except the Christian names of her sister. She adopted it believing that it expressed her intentions in every respect. It does in most, and can be read as carrying out her intentions. It appoints the executor she intended to appoint in the exact terms she intended to appoint it. That in itself if it stood alone would be enough, apart from this formal objection, to entitle it to probate…It also disposes of the residue after the life interest in the exact terms except for the Christian name. There is no doubt that she intended the document to which she put her signature to operate as her will.
If she had intended to sign the document in the original typewriting, and she had, by mistake, been given a carbon copy, she would have been executing a paper physically different from that which she intended to sign, but if it had contained a duplicate carbon copy it appears unarguable that document in carbon would be invalid on that ground. The present will seems to us to differ from such copy only in degree and not in substance....
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