Black and white

More often than not, probate disputes involve disagreement between the parties as to what were the true testamentary intentions of the testator. There are, however, cases where the actual intentions of the testator are clear beyond any doubt. In those cases, the question arises as to whether effect can be given to the manifest intentions of the testator or whether those intentions must be frustrated by a failure to comply with some other requirement of the law.

In Marley v Rawlings [2012] EWCA Civ 61, the Court of Appeal had to consider the situation where a husband had mistakenly signed the will meant for his wife and vice versa. Should effect be given to his undoubted intentions or were those intentions to be frustrated by a failure to comply with the formal requirements of the Wills Act 1837?

Clear intentions

Mr and Mrs Rawlings were attended upon at their home by their solicitor for the purpose of executing the wills that he had drafted for them. The wills were in identical terms mutatis mutandis (e.g. ‘him’ for ‘her’, ‘testator’ for ‘testatrix’, ‘my husband’ for ‘my wife’). Each spouse left his or her estate to the other spouse or, if the spouse failed to survive him or her for one calendar month, to a Mr Marley, who was not related to them but whom they treated as their son. The effect of making wills in these terms would have been to disinherit the Rawlings’ two natural sons.

By mistake, Mr Rawlings signed the will meant for Mrs Rawlings and vice versa. Nobody noticed the mistake at that time or on the death of Mrs Rawlings. The mistake came to light only after the death of Mr Rawlings.

The house in which Mr Rawlings lived with Mr Marley was owned by them as joint tenants and, accordingly, passed to the latter by survivorship. Mr Rawlings’ free estate amounted to some £70,000. A dispute arose as to whether this sum passed to Mr Marley pursuant to the document that Mr Rawlings had signed (the will) or to his surviving children under the intestacy rules. Mr Marley issued proceedings for probate of the will (with, if necessary, rectification thereof).

At first instance ([2011] EWHC 161 (Ch)), the claim was dismissed by Proudman J, who held that there was a failure to comply with section 9(b) of the Wills Act 1837 (as amended), which provides that no will shall be valid unless “it appears that the testator intended by his signature to give effect to the will”. If asked whether he intended to give effect to the particular document that he signed, he would have responded, in the words of the judge, “no, of course not, that is my wife’s will”.

On appeal, the prevailing theme of the submissions advanced on Mr Marley’s behalf was that the role of the courts was to give effect to the intention of the testator. The requirement of section 9(b) was merely that the document was signed in such a way that it was apparent that the testator intended by his signature to give effect to it as a will. It was not relevant for these purposes that the testator did not intend that it should be expressed as in fact it was. There were four courses by which effect could be given to Mr Rawlings’ undoubted intentions. First, the will could be admitted to probate as a whole and then rectified on the basis that the placing of the wrong will before him for signature was a clerical error within the meaning of section 20(1)(a) of the Administration of Justice Act 1982.
Second, the will could be admitted to probate as a whole and then construed so as to correct the errors, i.e. by reading the references to Mrs Rawlings as references to Mr Rawlings, etc. Third, probate could be limited to the only remaining operative provision, i.e. the gift to Mr Marley, which would avoid the need to rectify. Fourth, the will could be rectified under section 20 and then admitted to probate.

In response, it was submitted on behalf of Mr Rawlings’ children that the will failed both on the grounds of formal validity (because of non-compliance with section 9(b)) and substantial validity (because Mr Rawlings did not know and approve its terms).

It was held by the Court of Appeal (Sir John Thomas P, and Black and Kitchin LJJ):

1. The logical, and only, place to start was the question of formal validity. That question could not be approached other than on the basis of the will as it stands. The suggestion that the would-be will could be rectified under section 20 before considering whether or not it complied with the requirements for formal validity was both unappealing in principle and difficult to envisage happening in practice.
Section 20 of the 1982 Act confers a jurisdiction to rectify a ‘will’ where it is so expressed that it fails to carry out the testator’s intentions but nothing in that Act defines what is meant by the word ‘will’. The 1982 Act was, however, plainly intended to operate alongside the 1837 Act and, therefore, a “similar approach should be taken to the terminology in both”. Support for this approach could be found in section 20(2), which defines the limitation period for rectification by reference to a period beginning with the taking out of representation in respect of the will in question, which in turn would presuppose formal validity. Furthermore, section 9 of the 1837 Act concerns issues of formal validity, whereas section 20 of the 1982 Act is directed at substance. The former issues are logically anterior to issues of substance.

2. The document that Mr Rawlings had signed had the necessary testamentary quality: “It was a will not a utility bill or a contract for example.” Section 9(a) requires that a will be in writing (which this plainly was) and signed ‘by the testator’. Although not addressed in argument, Black LJ considered that there was a real question as to whether this will was signed by ‘the testator’: it had been drawn up for Mrs Rawlings but she, who was the obvious person to be described as ‘the testator’ in respect of it, did not sign it.
Even if Mr Rawlings’ signature did satisfy section 9(a), the question arose as to whether it appeared that he intended by his signature to give effect to the will as required by section 9(b). By signing a will, a testator is not only executing the document as a will but is also confirming that the document represents his testamentary intentions. In Mr Rawlings’ case, he intended to give effect to a will when he signed the document placed before him but not to the will that he signed. The use of the word ‘appears’ in section 9(b) suggested that the concern of the subsection was what was apparent on the face of the document.
In Mr Rawlings’ case, it was not apparent on the face of the document that he intended to give effect to it as his will because it was plainly his wife’s will. The document that Mr Rawlings signed could not be put in the same class as a will that is clearly the will of the testator but which contains errors susceptible to correction by construction, omission or rectification. The contents of the will that he signed were not the testamentary provisions that he intended to make.

3. This conclusion was consistent with the English authorities of Re Hunt [1872-75] LR 3 P&D 250 and Re Meyer [1908] P 353, in both of which cases the testatrix had signed a will intended for another. The Court of Appeal also reviewed in detail the overseas authorities dealing with the problem of mixed-up wills, including in particular the New Zealand case of Guardian Trust and Executors Company of New Zealand Ltd v Inwood [1946] NZLR 614, in which sisters had mistakenly executed each other’s wills, the terms of which were identical apart from the names.
However, nothing in this survey caused Black LJ (with whom the president of the Queen’s Bench Division and Kitchin LJ agreed) to depart from her initial view. First, the overseas authorities should be approached with caution given the differing provisions of the law in various jurisdictions. Second, it was clear that the judges had not found the problem an easy one and there was no unanimity of approach. Those cases that had adopted the so-called ‘facilitative’ approach, in which effect was given to the intentions of the testator, were those – such as Re McDermid [1994] Can LII 4950, a Saskatchewan case – where the jurisdiction in question had enacted legislation that enabled the court to order that a will was fully effective notwithstanding that it had not been executed in compliance with all the formal requirements if satisfied that it embodied the testamentary intentions of the testator. No such legislation had been enacted in England and Wales.

4. Given that the will was not valid and was inadmissible to probate, no jurisdiction to rectify it arose and it was not therefore necessary to consider whether or not what had happened was the result of a clerical error within the meaning of section 20 of the 1982 Act.

The decision of the Court of ?Appeal is a stern reminder of the importance of ensuring that the formal requirements for making a will are satisfied: even if the intention of the testator is manifest, the court has no power to circumvent a failure to satisfy those requirements.

Joseph Goldsmith is a barrister at 5 Stone Buildings