Signed and sealed

Earlier this month the Court of Appeal upheld a High Court decision that left the beneficiary of an erroneously signed will with nothing but a large legal bill.

Mr and Mrs Rawlings made mirror wills in 1999, each leaving everything to the other on first death and then to Terry Marley on the second death. Mr Marley had lived with the couple since 1975, and, although he had never formally been adopted by them, he was very much treated as a son by the family. The Rawlings also had two natural sons to whom they were not close. The Rawlings effectively disinherited their sons from their £70,000 estate.

The couple's solicitor and his secretary attended their home for the purpose of executing the wills. However, the documents were switched in error before signature and each signed the other's will. The mistake was not picked up by the solicitor or his secretary, who witnessed the signatures at the time. As the wills left everything to each other on first death and the will did not need to be submitted to proof when Mrs Rawlings died, the error was not noticed until Mr Rawlings died in 2006.

This simple administrative mistake had serious consequences, as it meant that, in law, the couple died intestate. While Mr Marley had been the couple's sole carer until they died, and it was clear that the intention was to reward him, because of the intestacy rules the Rawlings' sons inherited everything in equal shares.

Last year, Mr Marley applied to the High Court to request that the will be rectified under section 20 of the Administration of Justice Act 1982. An application under section 20 may be made where it can be shown that a will cannot be proved due to a clerical error. A number of cases decided in Commonwealth jurisdictions were presented, but the court did not feel it was appropriate to decide whether the will could be rectified under section 20 without first considering the validity of the will under section 9 of the Wills Act 1837, which states the following must be in place: '(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'¦'

Good intentions

The court decided that the will must fail under the requirements as set out in section 9(b) of the 1837 Act on the basis that the testator could not possibly have intended to give effect to the will because it was his wife's will and not his.

The definition of clerical error in section 20 of the 1982 Act deals with the requirement that the court is 'satisfied that a will is so expressed' that it does not carry out the testator's original intentions, the court said. As the error in this case did not revolve around a drafting error, the judges could not extend this definition beyond the wording of the will, as the will perfectly expressed the testator's wishes: it just did not bear his signature. Therefore, Mr Marley's claim failed.

Having reconsidered whether the High Court's findings on the formal validity of the will were correct the appeal judges held in Marley v Rawlings & Anor [2012] EWCA Civ 61 that the function of section 9 of the Wills Act was concerned with questions of form. In contrast, section 20 of the 1982 Act was concerned with the content of the will. Summing up, Black LJ said: 'I find it very difficult to conceive of a set of circumstances in which rectification ordered under section 20 could enable an otherwise invalid would-be will to satisfy the requirements of section 9 without rocking the very foundations of that section at the same time.'

The requirements of section 9(b), once again, proved the stumbling block. While it was agreed that Mr Rawlings intended to give effect to a will when he placed his signature on the document in front of him, he did not intend to give effect to the will he actually signed. Dismissing the appeal, Kitchin LJ wrote: 'This is a conclusion I have reached with great regret.'

A lay person reading this case undoubtedly will feel that commonsense has not prevailed. Both the testators were clear in their will instructions and plainly identified whom they wished to benefit from their joint estates when the survivor of them died. A simple mix up over the execution of the wills meant they were invalid. The decision illustrates clearly the limited ability of the court's power to rectify wills.

Obviously, Kitchin LJ had some sympathy for Terry Marley but had, I believe, no choice other than to apply the strict letter of the law. Section 9(b) of the Wills Act is very clear and easy to understand, the strict requirements for the execution of wills are cast in stone and unfortunately the Rawlings did not comply with them. However unfair this must appear, nevertheless the rules are there to be adhered to.

It is understood Mr Marley intends to pursue an action against the solicitor who drafted and witnessed the wills.

This case contains a valuable lesson and a reminder to solicitors of the potentially disastrous consequences that flow, both to themselves and their clients, where the very simple formalities of making a will are not followed to the letter of the law.