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Marley v Rawlings & Anor
Factual and Procedural Background
Husband and wife executed each other’s wills by mistake after their solicitor (Attorney [Solicitor]) handed them the wrong draft documents on 17 May 1999. Each instrument left the entire estate to the surviving spouse, and failing that, to the Appellant, whom the couple regarded as their son.
The error went unnoticed when the wife died in 2003 and her estate passed to her husband. On the husband’s death in 2006 the mistake was discovered. Approximately £70,000 remained in the estate; if the will was valid the Appellant inherited, otherwise the Respondents (the couple’s sons) would take on intestacy.
The Appellant sought probate. Judge [Proudman] dismissed the claim, holding that the document failed to satisfy s 9 of the Wills Act 1837 and was not capable of rectification under s 20 of the Administration of Justice Act 1982. The Court of Appeal (Judge [Black] giving the lead judgment) upheld that decision on the formality ground. The Appellant appealed to the Supreme Court.
Legal Issues Presented
- Whether the document signed by the husband satisfied the formal requirements of s 9 of the Wills Act 1837.
- Whether the instrument could be construed, severed or otherwise interpreted so as to reflect the testator’s intentions without rectification.
- Whether the court had power under s 20(1)(a) of the Administration of Justice Act 1982 to rectify the instrument on the basis of “clerical error.”
Arguments of the Parties
Appellant's Arguments
- The two documents should be read together; correctly interpreted, the husband’s will is the one intended for him, making it valid without alteration.
- Alternatively, words the testator could not have known or approved of should be deleted, leaving a valid testamentary disposition to the Appellant.
- If neither construction nor deletion sufficed, the court should rectify the will under s 20(1)(a) as the mistake was a “clerical error.”
Respondents' Arguments
- The exercise sought is one of rectification, not interpretation; the strict formal requirements of s 9 were not met, so there is no “will” capable of rectification.
- The solicitor’s mistake was not a “clerical error” within s 20(1)(a) and therefore rectification is unavailable.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Fuller v Strum [2002] 1 WLR 1097 | Testator must “know and approve” contents; court may sever unknown parts. | Used to analyse (and reject) the Appellant’s deletion argument. |
| Prenn v Simmonds [1971] 1 WLR 1381 | Contextual interpretation of contracts. | Formed part of rationale that wills should be interpreted like contracts. |
| Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 | Contextual approach to meaning. | Same purpose as above. |
| Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 | Modern statement of contract-construction principles. | Cited to support parity of approach between contracts and wills. |
| Bank of Credit & Commerce International SA v Ali [2002] 1 AC 251 | Limits on background material in construction. | Reinforced contextual interpretation discussion. |
| Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667 | No statement is made “acontextually.” | Supported view that wills are construed contextually. |
| Arbuthnott v Fagan [1995] CLC 1396 | Words not construed “in a vacuum.” | Same as above. |
| Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 | Unilateral notices interpreted like contracts. | Analogy drawn for unilateral wills. |
| Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183 | Interpretation of patents parallels contract principles. | Additional illustration of unified interpretative method. |
| RSPCA v Shoup [2011] 1 WLR 980 | Modern authority aligning will-construction with contractual principles. | Cited to show current doctrinal trend. |
| Boyes v Cook (1880) 14 Ch D 53 | “Sit in the testator’s arm-chair” when construing a will. | Historical support for contextual interpretation. |
| The Nai Genova [1984] 1 Lloyd’s Rep 353 | Rectification corrects mistaken expression. | Introduced definition applied to wills. |
| In re Butlin’s Settlement Trusts [1976] Ch 251 | Rectification available for unilateral documents. | Used to argue wills should also be rectifiable. |
| Harter v Harter (1873) LR 3 P&D 11 & In re Reynette-James [1976] 1 WLR 161 | Historical assumption that wills were not rectifiable. | Contrasted with current statutory power. |
| Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 | Five principles of construction (Lord Hoffmann). | Discussed to distinguish interpretation from rectification. |
| Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101 | “Red-ink” approach—correction by construction. | Examined in debate over scope of interpretation. |
| In re Williams decd [1985] 1 WLR 905 | Limits of interpretation versus rectification. | Cited in rejecting expansive interpretive cure. |
| In the Goods of Oswald (1874) LR 3 P&D 162; In the Goods of Boehm [1891] P 247; In the Goods of Hunt (1875) LR 3 P&D 250; In re Meyer [1908] P 353 | Authority on severance where parts of a will are not approved. | Used to assess (and reject) deletion strategy. |
| In re Resch’s Will Trusts [1969] 1 AC 514 & In re Hawksley’s Settlement [1934] Ch 384 | Admission to probate distinguished from later construction. | Invoked to show a formally compliant document may later prove invalid in substance. |
| Craddock Brothers v Hunt [1923] 2 Ch 136 | Rectification operates retrospectively. | Supported reading of “will” in s 20 as including a document later rectified. |
| Domb v Isoz [1980] Ch 548 | Rectification can render an otherwise ineffective land contract enforceable. | Analogy used to justify rectifying a formally deficient will. |
| Bell v Georgiou [2002] EWHC 1080 (Ch) | Judicial synthesis of “clerical error” under s 20(1)(a). | Quoted as leading summary; Supreme Court adopted broader view. |
| Hudson v St John 1977 SC 255; Anderson v Lambie 1954 SC (HL) 43 | Scottish authority on correcting defective expression via reduction/declarator. | Cited in comparative discussion by Judge [Hodge]. |
Court's Reasoning and Analysis
1. Formal compliance (s 9): Although the document named the wife as testator, it was physically signed by the husband with the intention of executing his will in the presence of two witnesses. Section 9 is concerned with formalities; on those facts the husband’s signature and intention satisfied subsections (a) and (b).
2. Interpretation and severance rejected: The Court found that recasting the document through construction would blur the distinction between interpretation and rectification, an issue insufficiently argued on appeal. The alternative request to delete isolated words or clauses was described as an impermissible “word game” inconsistent with authority.
3. Rectification power: The critical question was whether the solicitor’s mistake fell within “clerical error” in s 20(1)(a). Adopting a purposive and flexible reading, the Court held that “clerical error” covers routine office mistakes such as handing the wrong draft for execution. Narrower readings would arbitrarily deny relief where the mis-delivery (rather than mis-typing) caused the same substantive error.
4. Document qualifies as a “will” for s 20 purposes: Even if initially invalid, a document intended to be a will can be rectified; otherwise the statutory remedy would be emasculated. The term “will” in s 20 therefore extends to a purported will that requires rectification to achieve validity.
5. Scope of rectification: Because the testator’s intentions and the correct wording were certain (the spouse’s unsigned counterpart), wholesale replacement of typed provisions was permissible. The error did not involve misunderstanding instructions (s 20(1)(b)) but was squarely a clerical mishap (s 20(1)(a)).
Holding and Implications
APPEAL ALLOWED. The instrument is to be rectified by substituting the typed contents of the wife’s draft into the husband’s signed document, thereby giving effect to the testator’s true intentions.
Implications: The decision confirms that “clerical error” under s 20(1)(a) embraces routine administrative mistakes such as handing parties the wrong will, and that a document need not first satisfy s 9 formalities before rectification can be ordered. This broadens the practical reach of the rectification power, providing greater judicial flexibility to uphold genuine testamentary intent without setting entirely new precedent beyond statutory interpretation.
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