Where There’s a Will…

We have all done it.  Written something down or typed something up only to go back to re-read it and realise that missed a bit.  See?  I have just done it there.  It should have said, “and realise that we’ve missed a bit”.  But you can easily go back and correct the error, using a small arrow or hitting the insert button, possibly even the rewind button.  However, sometimes you get an error which, for various reasons, cannot be corrected by the writer.  Like errors with a Will.  Usually the error only comes to light once the maker of the Will has died when it is too late for him to correct it. As a result, someone benefits when that is not what the Testator intended.

Take for example the recent case of Marley –v- Rawlings. The facts were quite simple.  Mr & Mrs Rawlings had two children (Michael and Terry) but had also informally adopted Terry Marley as a child.  After Michael & Terry Rawlings left home, Terry Marley stayed with the Rawlings and cared for them as they got older.  In recognition of this, the Rawlings made identical Wills, giving their respective estates to each other or, if they failed to survive, to Mr Marley.  There was nothing for Michael or Terry.

However, there was a bit of a mix-up when it came to signing the Wills.  Mr Rawlings signed his wife’s Will and Mrs Rawlings signed her husband’s.  This error only came to light after both of them had passed away.  I am sure I do not need to tell you that s9 Wills Act 1837 says that “no will shall be valid unless it is in writing and signed by the testator”. Neither Will had been signed by the actual testator so, on a precise reading of the Wills Act, the Wills were invalid and Mr & Mrs Rawlings had died intestate.  And because Mr Marley had not been legally adopted by the Rawlings, he wouldn’t get a look-see into the Estate – everything would go to the Rawlings’ natural sons.

Of course, now that both of the Rawlings were dead, the matter could not be rectified by them so Mr Marley applied to the Court to see what it could do.  Under the Administration of Justice Act 1982 – s20 if you are interested – a Court can rectify a Will where it believes the Will fails to carry out the Testator’s intentions as a result of a clerical error.

I concluded a case last year using this very same section.  In that case, dad had executed a Will giving his house to his carer but subsequently changed his mind and wanted to leave the house to his daughter, with the rest of his estate to be distributed equally amongst his children, of which there were four. He gave instructions to his solicitor but rather than taking the carer’s name out of the paragraph and substituting that of my client (the daughter), they just deleted the paragraph all together.  It wasn’t until after dad died, that this error was noticed and by then, it was too late to get it corrected.  It seemed pretty obvious from the Will that a paragraph was missing as it didn’t read properly.  Plus, there was an attendance note where it was recorded that dad wanted my client to have the property.  Unfortunately, the attendance note was a bit ambiguous.  Added to that, the solicitor who drafted it and my client’s siblings defended it.  I am pleased to say though that we came to an amicable settlement following mediation.

Not so in the Marley –v- Rawlings case.  This one went right through the entire court system.  In both the High Court and the Court of Appeal, Mr Marley lost.  As I have explained, the requirement for a valid Will is for the testator to sign the Will himself and it would appear that the judges in these two courts felt that it was such a fundamental requirement, that it could not be rectified – the Courts could not override a statute.  This is despite the fact that Mr & Mrs Rawlings’ Wills were identical, there was clear evidence of their intentions but the solicitor had, well, let’s face it, he’d screwed up!

It seems a pretty harsh outcome. Even Lady Justice Black in the Court of Appeal said, “this is a conclusion I have reached with great regret”, but still went ahead and found against Marley.

Fortunately, I can say that the Supreme Court disagreed with the lower courts and concluded that this was such an obvious case of clerical error and that, had Mr & Mrs Rawlings been there, they would have corrected it in the blink of an eye, they had no compunction in rectifying Mrs Rawlings’ ‘Will’ so it now became Mr Rawlings’ Will.  Mr Marley is therefore now entitled to their Estate, which I understand to be worth in the region of £70,000.

To me, this seems a sensible outcome as it really was an obvious error.  I can see and understand the concerns raised by the lower courts that by tinkering with the Will, it is overriding a statute settled by Parliament and certainly, if the facts were less than clear cut, I doubt if the Supreme Court would have come to this conclusion.

Whilst it is a nice outcome for Mr Marley though, it wasn’t such good news for the solicitors whose negligence had created the problem. They were ordered to make a contribution to the costs incurred by the parties in this long running dispute.

How we can help you

Emma Slade is a Solicitor specialising in Professional Negligence claims including Solicitors Negligence. Emma and her professional negligence colleagues work closely with our specialist contentious wills and probate team when bringing a claim for compensation following a solicitor’s mistake in relation to a will or the administration of an estate. This blend of expertise allows us to draw together skills and knowledge from two complex legal areas to provide our clients with a first class service. You can read what our contentious probate team have said about these cases in two informative articles published on a specialist legal site, Can a beneficiary sue a solicitor for negligence?  and What can I do if a solicitor makes a mistake when preparing a will?

You can call Emma on freephone 0808 139 1595 for a FREE case assessment or drop us an email at [email protected]

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