Rectification of a Will
The recently decided United Kingdom Supreme Court case of Marley v Rawling  UKSC 2 illustrates how a simple mistake resulted in costly litigation.
On the 17th of May 1999 a married couple, Mr and Mrs Rawlings had an appointment with their lawyer at their home for the purpose of executing their wills that he had prepared for them. The couple’s wills had identical wording except for the necessary difference to reflect the identity of the maker. Each spouse left his or her entire estate to the other and in circumstances where either spouse failed to survive the other; the estate was to be given to Mr Marley. Mr Marley was not related to the couple, but lived with them and took care of them for many years and they regarded him as a son.
By mistake Mr Rawlings signed the will meant for his wife and Mrs Rawlings signed the will meant for her husband. The wills were witnessed by the lawyer and his secretary and no one noticed the error then. The error went unnoticed even on the death of Mrs Rawlings as the estate passed without dispute to the surviving spouse. However, the error came to light when Mr Rawlings died.
At first glance the obvious error made seemed to be just a minor slip up as the intentions of the couple were quite clear. Mr Marley applied to the High Court for the will to be rectified and probated. However, Mr Rawlings’ two sons challenged the validity of the will. It was at this point it became clear that the seemingly simple mistake could possibly have great consequences.
The High Court was confronted with the question as to whether or not the will that Mr Rawlings had signed could be rectified and be held to be valid. If it could be rectified Mr Marley would inherit the estate left to him, in accordance with the wishes of Mr Rawlings. If it could not be rectified, Mr Rawlings would have been considered to have died intestate, in which case, Mr Marley would be disinherited and Mr Rawlings’ two biological sons, with whom the couple were not close, would stand to inherit his estate.
Mr Marley requested that the will be rectified under section 20 of the UK Administration of Justice Act 1982. An application under section 20 could be made in circumstances where the court is satisfied that a will failed to carry out the testator’s intentions because of a clerical error. Mr Marley’s application for rectification was dismissed in the High Court and later in the Court of Appeal. Both Courts found that it was not appropriate to decide whether the will could be rectified without considering the validity of the will.
The requirements for a valid will in the UK are similar to those that exist in Jamaica. In order for a will to be valid it must be in writing, signed by the testator at the foot or end of the will or by some other person in his presence and by his direction, and the testator’s signature must be made or acknowledged in the presence of two or more witnesses present at the same time, and it must be apparent that the testator intended by his signature to give effect to the will.
The High Court and the Court of Appeal both decided that the will was not valid as it did not meet the requirements of the law (in that the testator signed the wrong will) and therefore refused to order that the will be rectified.
These decisions of the High Court and the Court of Appeal disregarded the clear intention of the testator and instead placed focus on the form of the will and not the substance.
Mr. Marley however succeeded on a further appeal to the Supreme Court which Court provided a beacon of hope by arriving at what appears to be a more just decision. The decision of the Supreme Court has been referred to as the common sense approach and has been gladly accepted by most. The Court looked at the intention of the testator, which was clearly expressed, and found that it had the power to rectify Mr Rawlings’ will in the same way it had the power to rectify another document, such as a contract. The term clerical error (as provided for under Section 20 of the UK Administration of Justice Act 1982) was interpreted widely to include mistakes arising out of office work of a relatively routine nature such as preparing, filing, sending, and organising the execution of a document, unless the activity involves some special expertise.
It was held that the will should be rectified so that it would contain the typed parts of the will signed by the late Mrs Rawlings in place of the typed parts of the will signed by Mr Rawlings.
Unlike the UK there is no statutory provision for rectification of a will in Jamaica. Our courts may therefore look to common law decisions such as this one. Nevertheless the case of Marley v Rawlings illustrates the importance of getting it right. It also provides an interesting analysis of how the Courts will look at rectification of wills and the extent to which the Courts will consider the preservation of the testator’s intention.