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.

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Do you need to be an expert to argue about wills?

Civil litigation is a funny business. In some ways it is all “litigation”, and a litigator is as different from a non-litigator as a toaster is from a fridge.  It is all about making, or defending, claims and involves courts, threats, steely nerves and the management of risk.

Yet it also has its distinctions, and we would naturally describe ourselves as personal injury litigators, or property litigators; we all realise that the law is too big to know all of it, and we have all been told that Dabbling is Dangerous (even if we don’t always believe it).

This is all very well. Niches are good – you do things you are good at, you attract clients who need this sort of thing, you charge a premium price for a premium product, and you win more often than not, so the clients are happy. However, what happens if your niche closes down? There used to be a steady trade  for people with nice round hands who wrote out deeds on parchment, and there had been for hundreds of years. Or had skill in looking after horses. Then along came the typewriter, or the motor car, and goodbye niche.

This sort of thing has been happening to litigators over the last few years. Out here in the Midlands there is an awful lot less litigation going on than there used to be before the banks tried to take us all over the cliff with them. First the market in disputes between businesses fell away, as everybody decided they just couldn’t risk the cost of fighting, then the remaining pools of Legal Aid dried up, and personal injury work isn’t what it was, with portals, protocols, and talk of fixed costs and the end of the CFA as we knew it. Litigators are scratching around.

One of the few growth areas is Contentious Probate – arguments about wills, trusts, executors, Inheritance Act claims and so on.  This has the major advantage that clients only show an interest when there is a serious amount of money at stake. They only discover a liking for Great Aunt Alice once they find that she is worth the odd £100k or two. They rarely feel it worth while arguing that as a point of principle they should get a half share in her dog and its basket, unlike a lot of the other possible areas such as matrimonial law, or claims against the police, where clients ride their principles up and down all day with little regard for how the humble lawyer is to get fed. No, this looks much more promising.

And all the evidence seems to show that there are more of these arguments about. I’m not sure whether it is because times are hard and people turn to arguing with their families to make ends meet, or that it has become fashionable, like whiplashes were, or it’s a spin off from the Ilott v Mitson case which said that adult children are entitled to claim under the Inheritance Acts. But it is clear to see in the figures.

So lots of worried litigators jump on the band wagon. This new area can’t be that difficult, can it? Well here are a few unusual features that you don’t get elsewhere:

  • All parties thinking they know all the other parties, but not always being right;
  • Actions with 30 parties, including minors, people under disabilities, and cousin Frank in Vietnam, all of whom may need to be served;
  • A chance to get a statement from the person who drafted the will under a Larke v Negus request;
  • Caveats, Warnings and Appearances, dealt with in Leeds;
  • Statements of Testamentary documents;
  • No default judgements or summary judgements, but a chance to proceed with written evidence to proof in solemn form;
  • Substantial chances of winning and not getting your costs, or losing and not having to pay any, or sometimes losing and getting the costs paid out of the estate;
  • And clients who might be worth a fortune if they win, or nothing if they don’t and can’t afford to pay the cost as it goes, and who are extraordinarily difficult to get covered by ATE insurance.

Then you add counsel whose clerks assure you have done lots of this but turn out to know no more than you, and District Judges who handle 3 cases a year (or, more scarily, 3 a day) and ask whether you would like the “usual directions.” And having to administer the estate if you win.

Clients who come in looking for a windfall, and having convinced themselves that they are entitled to it, are very upset if things go wrong, and explaining that all litigation is risky, or the judge had a bad day, rarely cuts the mustard. They expect either success, or a good compromise, or early advice that they aren’t going to get anywhere and should save their efforts for the next great aunt. And in all fairness, this is what they ought to be getting. You don’t rate a dentist who embarks on extensive root-canal work when he really ought to tell you to get the thing pulled out; you feel let down.

No, clients, not unreasonably, expect you  to know what you are doing. You need a private client colleague who deals with the administration, access to expert counsel for an early advice and the trials, and a detailed knowledge of the (odd) procedure and the law. You need to know the courts to go to and those to avoid like the plague. You need to cultivate specialised funding that can only come with a track-record. You need to know those of your opponents who know their onions, and those who are cabbages. And you need to pick your clients, pick your cases, and pick your fights.

Like anything else really. Don’t Dabble. Unless you want to help the swelling numbers in the next popular field – making professional negligence claims against solicitors.

Declaration of Presumption of Death

“If somebody goes missing for at least 7 years a court can declare them dead.”

Well, not exactly. They can make various orders on the basis that they are dead – eg payment out of life insurance and unit trust monies. Many professionals are vaguely aware of this. However, it is extremely uncommon in practice, and when it does it is useful to have clear guidance on what to do.

This is provided by the Bayes-Walker case [Bayes-Walker v Bayes-Walker  [2010] EWHC 3142 Ch] involving an RAF Sergeant who went missing from his base in Cyprus and was last heard of in Israel. Mr Justice Warren gives a checklist in less than 3 pages of transcript setting out everything you need to know. And so when you are approached you can get it right first time.

_________

Note: this does not apply to the far more common case of the death in an accident when the body cannot be found. If there is clear proof that the person was say on the aeroplane that crashed then a coroner can certify death in the normal way. You don’t have to wait for 7 years.

Nor does it prevent say a divorce occurring on the basis of 5 years separation, or even unreasonable behaviour by not contacting the spouse for some shorter time. Subject of course to the problems of service in both cases.

Are wills any use following Ilott v Mitson?

NOTE – This piece is about the 2011 CA case. For the 2015 CA case see here. For the 2017 SC appeal see here.

Melita Jackson died in 2004 leaving some £486,000. She was a widow and had an only daughter, Heather Ilott, aged in her 40s, who had 5 children, a husband who only worked part-time, and who relied very largely on state support. Even a small part of her mother’s estate would have been very useful to her. But Melita left all her money to three animal charities, and cut out her daughter entirely.
As you might imagine, there was a considerable history of antagonism between mother and daughter, which started when the daughter eloped at the age of 17. Melita had not supported animal charities during her lifetime, and by all accounts didn’t like animals particularly.

The Proceedings
Heather issued proceedings against the charities under the Inheritance (Provision for Families and Dependants) Act 1975, on the grounds that the will didn’t provide “reasonable financial provision for her…maintenance” under s1 of the Act.
The District Judge allowed her £50,000 – about 10% of the estate, expressed as capitalised maintenance. This is hardly news – DJs make all sorts of decisions, and the charities were left with over £400,000, so they could live with this. However Heather wanted more and appealed to the High Court Judge. The charities cross-appealed on the grounds that no award should have been made at all, and succeeded. So off to the Court of Appeal for an authoritative decision.
This came out on 31.3.11 and the CA decided that:
• An adult child is entitled to reasonable provision for maintenance, even if they are estranged and capable of work, and comments to the contrary in the leading case of re Coventry are incorrect.
• In particular they don’t need to be owed a “moral obligation”.
• The decision is very largely one for trial judge in the case, based on a value judgement.
• The court needs to look at matters as a whole and the absence of other calls on the estate was a factor.
• The amount of the award was another matter. The parties were sent back to the High Court to decide the appeal on the amount with strong indications that they may get the DJ’s decision again.
The case is reported as Ilott v Mitson & Land [2011] EWCA Civ 346

The Comments
The charities, and some commentators, have made a lot of fuss on the basis that if all wills that exclude children can be rewritten then nobody is going to know where they are. At least in the old days this wasn’t going to happen for adult children. It is going to bring a lot of uncertainty and gold-digging. Charities will lose millions. It is hardly worth writing a will. The charities are considering a further appeal to the Supreme Court.
Others point out that there is a restriction to “maintenance” so it can only apply of the child needs to be maintained. It isn’t a free-for-all asking for a legacy in all cases. And the award is quite modest even here, and doesn’t look like it is going to be increased by much. The Act replaced earlier legislation that excluded claims by adult children unless they were disabled or unable to work, and the change was presumably meant to make a difference to the result. Spouses have always been able to able to ask for reasonable provision that is not limited to maintenance, and the sky has not fallen.

Who is right? – Guidance
This is an unusual case. If a testator wants to exclude a child from their will they ought to consider:
• Setting out reasons in the will or elsewhere – here there was an explanatory letter but it contained major inaccuracies and was not believed to be true by the DJ.
• Giving reasons for giving more to other beneficiaries: if one brother needs more because of his financial problems it may be reasonable to give the other less..
• Making a gift sufficient to cover maintenance, if not equality with others
• If they are going to give all or much or the estate to charities then at least choose charities they have a connection with.
• Considering lifetime gifts – a will, and the Act can only deal with what is left at death. But a gift made with the intention of avoiding an Inheritance claim can be set aside.
The converse applies if such a will is to be challenged. Important points are:
• Consider what is needed for reasonable financial maintenance.
• Does the claimant need an on-going subsidy for basic living expenses?
• Explore what other assets the claimant has, or might expect to get.
• Look at the evidence of reasons given by the testator very carefully.
These all require particular care from professional advisors, both in the preparation of the will, and in considering potential challenges. Falling down on either of these may give rise to a negligence claim. It requires specialist advice.