For “Black” read “White” here – Marley v Rawlings

The Supreme Court are at it again.

In Marley v Rawlings EWSC 2  (22.1.14) they were faced with a problem that would be amusing if it wasn’t so important for those concerned. Mr & Mrs Rawlings wrote identical wills leaving everything to the survivor, failing which everything to Terry Marley, who they had treated as their son, but who had not been legally adopted. Unfortunately the solicitor handed Mr R’s will to Mrs R and vice versa and so they signed the wrong ones without anybody, including the witnesses, noticing. Indeed nobody noticed when Mrs R died either, and matters didn’t come to light until Mr R died and Terry tried to administer the estate.

The problem was important because Mr & Mrs R had two legitimate sons who would get the whole estate if the will failed, when Terry would get nothing.

So Terry applied for the will to be rectified under s 20 Administration of Justice Act 1982, which allows rectification in the case of “clerical errors”.

Now, unlike many cases of rectification it couldn’t be easier to see

  1. that this was a mistake, and
  2. what the intention was.

Indeed there was the exact wording of the will that Mr R intended to sign typed out perfectly but signed by his wife. The solicitor, whom the Supreme Court very tactfully don’t identify, (and whose insurers have probably had to pay for the litigation so far) freely admitted the error and gave evidence to that effect. So it should have been a doddle.

However the High Court Judge rejected the application, saying that the piece of paper that Mr R signed wasn’t a “will” at all, as it purported to be Mrs R’s will but was signed by Mr R and so didn’t comply with the formal requirements of s 9 of the Wills Act 1837. Thus it couldn’t be rectified under the 1982 Act because that only applied to “wills”. Furthermore, she doubted that this was a”clerical error” as it wasn’t to do with mistypings etc. And the Court of Appeal agreed with her.

I noticed the case at the CA stage and felt sorry for Terry (or more accurately for the solicitor’s insurers). It was clearly the wrong result in any fair and reasonable way of looking at things, although I could see where the courts were coming from. Their decision was entirely logical, if also entirely daft. But I noticed that the total estate only came to some £70,000 so I didn’t think that an appeal to the SC was really going to happen.The decision to appeal would be “very brave” in the sense that Sir Humphrey used the expression in Yes Minister.

Well, there are clearly brave people at the insurers because they went ahead with the appeal and the SC decided the case today, and rectified the will in Terry’s favour.

They skated over two lesser arguments – interpreting Mr R’s will as meaning the words in Mrs R’s will, or deleting all of the will apart from the gift to Terry and the signatures – as being rather cowardly ways of coming to what was the only fair decision, and faced the rectification argument head on.

Lord Neuberger, giving the judgement, said [at paras 55-67]  that you had to read the legislation broadly and that it is clear that “will” in s20 must mean “purported will” as well. So there was power to amend it. And [paras 68-83] there is a lot more to clerical work, and hence clerical errors than just typing things. You can also put things in the wrong envelope or send them by email to the wrong places. Or as here get them signed by the wrong people.  Game, set and match to the appellant.

I haven’t gone into the intricacies of the arguments here, and others will no doubt do so elsewhere over the next few days and weeks. This is because there is a bigger picture. Yet again the Supreme Court has done what it does best, and indeed is the real reason for its existence. They get a problem referred to them, they work out what the right solution is and then they just do it. If this means overruling lower courts or indeed departing from a previous decision then they do so, because as the SC they can. And they are bright enough to interpret legislation, or case-law in the way that suits their argument. They don’t run on rails. They do what needs to be done.

I’ve mentioned this before here and here but I give no apology for doing so again.

But this raises the still bigger picture of the balance to strike between rules and the exercise of judicial decisions. How far should a judge be constrained from doing what is plainly right in the case in front of him by detailed legislation, rules or guidance? That is something for another day.


Author: Coventry Man

A perspective from a litigation lawyer in the Midlands. After many years in Coventry I am now with David Lee Solicitors in Kenilworth, helping people with all sorts of litigation, especially property and landlord & tenant problems.

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