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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Marley v Rawlings & Anor [2012] EWCA Civ 61 (02 February 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/61.html Cite as: [2012] 4 All ER 630, [2012] WTLR 639, [2013] Ch 271, [2012] Fam Law 403, [2013] 2 WLR 205, [2012] EWCA Civ 61, [2012] 2 FLR 556, 14 ITELR 843 |
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ON APPEAL FROM THE CHANCERY DIVISION
MRS JUSTICE PROUDMAN
HC10C01702
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE BLACK
and
LORD JUSTICE KITCHIN
____________________
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Appellant |
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- and - |
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Respondents |
____________________
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Mr Nicholas Le Poidevin QC & Mr Alexander Learmonth(instructed by Gillan & Co) for the Respondents
Hearing date : 19th October 2011
____________________
Crown Copyright ©
Black LJ :
"This is the last will of me ALFRED THOMASRAWLINGS
of [address].
1. I REVOKE all former wills and testamentary dispositions.
2. IF MY wife MAUREEN CATHERINERAWLINGS
of [address] survives me by a period of one calendar month then I appoint her to be the sole Executrix of this my will and subject to my funeral and testamentary expenses fiscal impositions and all my just debts I leave to her my entire estate.
3. IF MY said wife MAUREEN CATHERINERAWLINGS
fails to survive me by a period of one calendar month I appoint TERRY MICHAEL
MARLEY
of [address] to be the sole Executor of this my will and subject to my funeral and testamentary expenses fiscal impositions and all my just debts I leave to him my entire estate.
IN WITNESS whereof I the said ALFRED THOMASRAWLINGS
have hereunto set my hand the day of 1999.
SIGNED by the testator in our presence and then by us in his:- [space for witnesses]"
The statutory framework
a) Wills Act 1837 in its present form
"It shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in manner herein-after required, all real estate and personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed, or disposed of, would devolve upon his executor or administrator…."
"The words and expressions herein-after mentioned, which in their ordinary signification have a more confined or a different meaning, shall in this Act, except where the nature of the provision or the context of the Act shall exclude such construction, be interpreted as follows; (that is to say) the word "will" shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to an appointment by will of a guardian of a child, and to any other testamentary disposition;…"
"9 Signing and attestation of wills
No will shall be valid unless –
(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
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) [requirements of the witnesses]"
b) Some history of the Wills Act and other provisions relating to wills
"no Will shall be valid unless it shall be in Writing and executed in the manner herein-after mentioned; (that is to say,) it shall be signed at the Foot or End thereof by the Testator, or by some other Person in his Presence and by his Direction; and such Signature shall be made or acknowledged by the Testator in the Presence of Two or more Witnesses present at the same Time, and such Witnesses shall attest and shall subscribe the Will in the Presence of the Testator, but no Form of Attestation shall be necessary."
"so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will;…."
Sections 20 and 21 of the Administration of Justice Act 1982 ("the 1982 Act")
"20 Rectification
(1) If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence—
(a) of a clerical error; or
(b) of a failure to understand his instructions,
it may order that the will shall be rectified so as to carry out his intentions.
(2) An application for an order under this section shall not, except with permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out."
"21 Interpretation of wills—general rules as to evidence
(1) This section applies to a will—
(a) in so far as any part of it is meaningless;
(b) in so far as the language used in any part of it is ambiguous on the face of it;
(c) in so far as evidence, other than evidence of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.
(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation."
The trial judge's reasoning
"21. In my judgment s 9 (b) of the 1837 Act provides a complete answer to the claim, namely that the testator did not intend by his signature to give effect to the will which he signed. If asked whether he did he would not have said, 'yes, subject to correction of errors by substituting my wife's name for mine wherever it occurs'. He would simply have responded, 'no, of course not, that is my wife's will'."
"It seems to me that the claimant must fail on the ground that the requirement of s. 9(b) of the Wills Act 1837 as amended is not met."
Counsel's submissions in outline
The appellant's submissions
i) The will should have been admitted to probate as a whole and then rectified by the exercise of the power conferred by section 20, the placing of the wrong will before the testator for signature being a clerical error within that section which is intended to apply to any mechanical/purely administrative/routine errors in the preparation and execution of the will and should not be confined to errors of drafting; or
ii) The will should have been admitted to probate as a whole and then construed so as to correct the errors in it, reading the references to Mrs Rawlings
as references to Mr
Rawlings
and vice versa; or
iii) Probate should have been granted limited to the only remaining operative provision in the will (the gift to Mr Marley
and his appointment as executor), in which case construction would present no difficulty and there would be no need for rectification; or
iv) The will should have been rectified first under section 20 and then admitted to probate.
The respondents' submissions
Discussion
"There can be no doubt but that the Parliamentary intention in substituting the new section 9 for the original section was to simplify the requirements for the execution and witnessing of a will. The requirements of paragraph (a) and paragraph (b) are in my judgment complementary. Paragraph (a) requires a signature. Paragraph (b) requires that the signature be intended to give effect to the will. These requirements demand a practical approach.…. "
"The object of a signature by a testator, by contrast, is to authenticate the written document in question as the will of the testator. A normal signature, placed at the foot of a testamentary document would in most cases carry the implication that the testator intended the signature to give testamentary effect to the document…."
"Secondly, that except in certain cases, where suspicion attaches to the document, the fact of the testator's execution is sufficient proof that he knew and approved the contents."
"I should be glad to give effect to the intentions of the testatrix, by granting probate of this instrument, if I could, but I must not allow myself to be led away from what appears to me to be very plain ground by such a desire. No doubt there has been an unfortunate blunder. The lady signed as her will something which in fact was not her will. If I were to attempt to read it as her will, it would lead to a variety of absurdities. She leaves to her sister Sarah, that is to herself, a life interest in a portion of her property, and all the furniture, plate, &c, which she holds in part with herself. I am asked to treat this as a misdescription. If by accident a wrong name had been introduced, and it was clear what person was intended, the Court would give effect to the instrument, providing the mistake could be corrected. But it would be contrary to the truth in this case if I acted upon such an assumption. If I were to put such a construction upon this will, I should be assuming in order to do substantial justice, what everyone who hears me would know is contrary to the fact. And no Court ought to base its judgment on something wholly artificial, and contrary to what everyone must see is the real state of the circumstances. It is enough to say that there has been an unfortunate blunder. A paper has been signed as the lady's will, which, as it happens, if treated as her will, would to a great extent, although not entirely, carry out her wishes. But in one respect it does not, for by it a legacy is bequeathed to one charity which she intended to leave to another. As regards this legacy, it is suggested that it might be treated as if the deceased did not know and approve of that part of the will, but she did not in fact know and approve of any part of the contents of the paper as her will, for it is quite clear that if she had known of the contents she would not have signed it. I regret the blunder, but I cannot repair it." [my italics]
"…it is quite clear that this lady, though her signature is on the document, never meant to sign this particular codicil at all. She meant to sign a totally different document. It may be that this document contains provisions corresponding with what she wished to sign, because the two documents were cross-codicils by two sisters. But, as a matter of fact, the deceased in signing her name to this codicil never intended to do that at all, but intended to put her signature to another document; and unless some authority can be produced to me to shew that in such a case the document she did not intend to sign is to be treated as the one she did intend to sign, I do not mean to support it. In my opinion this codicil cannot stand." [my italics]
"This would appear, upon careful examination, to be a very technical basis for its rejection, and, upon an exact appreciation of the true facts, to lack substance. True, the physical document was not the paper that the testatrix intended to sign, but it was a paper that contained everything that she wished included in the paper she intended to sign except the Christian names of her sister. She adopted it believing that it expressed her intentions in every respect. It does in most, and can be read as carrying out her intentions. It appoints the executor she intended to appoint in the exact terms she intended to appoint it. That in itself if it stood alone, would be enough, apart from this formal objection, to entitle it to probate: Mortimer on Probate Law and Practice, 2nd Ed 205,246. It also disposes of the residue after the life interest in the exact terms which the other will contains. The life interest is in correct terms except for the Christian name. There is no doubt that she intended the document to which she put her signature to operate as her will.
If she had intended to sign the document in the original typewriting, and she had, by mistake, been given a carbon copy, she would have been executing a paper physically different from that which she intended to sign, but if it had contained a duplicate carbon copy it appears unarguable that document in carbon would be invalid on that ground. The present will seems to us to differ from such copy only in degree and not in substance. No doubt the circumstances of the recital with the wrong Christian name would call for explanation as the preliminary headings of the will in Whyte v Pollock. But the fact that the paper put before the testatrix was different from that which she thought she was signing should not, we think, prevent that part of the document which she wished and believed, and which was, in fact, included, being her testamentary act. The testatrix did really know and approve of the effective provisions contained in it: Parker v Felgate and Perera v Perera."
"Decisions by Judges of such eminence are entitled to the greatest respect. But these were founded upon ex parte applications, which were not fully argued and none of which appear to have been matters of substantial importance to the applicants, as appears [sic] from passages in the judgments that effect would probably be given to the wishes of the various testatrixes by those succeeding on an intestacy. In such circumstances, one can understand that the first impression which might well be formed in a case of this kind would be that the signing of a document drawn as somebody else's will could not be taken as the expression of the intention of a testator, and that the whole document must be rejected. But it would seem that that view is not so much in accordance with the real position, and the principles of the law as the conclusion that the document does express, as it was intended to, the real intention of the testatrix except of the omission of the two words 'Maude Lucy,' and the substitution for them of the word 'Jane'. Moreover, the rule is now well established that words or clauses that have been introduced without the knowledge and approval of the testator may be rejected, and the remaining portion of the will alone admitted to probate: Morrell v Morrell, Fulton v Andrew and Mortimer on Probate Law and Practice, 2nd Ed 86,87. This had not been clearly established when In re FS and In re Hunt were decided. In such circumstances, this Court feels that, as the language and terms of the will in Re Meyer do not appear to have been the same as those of this will, that decision does not preclude the Court from acting upon the opinion it has come to as to its validity and effectiveness. It therefore holds that the paper executed by the deceased was duly executed, is effective as her will, and should be admitted to probate. Probate will accordingly be granted with the omission of the word 'Jane' from the will."
"….the testator did not read over this document as his will, but read it over as his wife's will. He executed the document by mistake. The one dispositive intention he had, namely, to give his estate to his wife was not included; in its place there was a disposition to 'my husband William Foster' which is a palpable absurdity. No striking out of the words will make this provision tractable and in accordance with the proved intention of the testator. The evidence tendered fails to establish to this Court those factors which were accepted as being proved to the satisfaction of the Court of Appeal in Guardian Trust".
"Where a document has been duly executed in accordance with the Wills Act 1837 (UK) and the testator intends to execute a document as his last will, and the document actually executed can with the deletion of a word or words give true effect to the testator's testamentary intentions then probate may be granted of such document with appropriate deletions."
"The courts of England and Australia have refused to recognise unexecuted wills, while the courts of Canada have performed mental gymnastics to do what they can to recognise them. The general rule hitherto has been that 'when a testator executes a will prepared for another, the document is not his will, even if some of the provisions therein were intended by the testator': Williams and Mortimer, Executors, Adminstration and Probate (1970)"
"22. To summarise, the common law of England recognised a power in the court to delete words from a will which were included by mistake but did not allow for power in the court to rectify by altering or adding to the wording of the will. The law of New Zealand has recognised a similar power to delete. It has not yet recognised a power to rectify by other alterations although, in the case of McConagle v Starkey, the court indicated that it was supportive of such an approach. In Canada the courts have exercised a power to rectify a will by altering the wording but the initial decision could be said to be based on a misunderstanding of Guardian Trust."
i) Deleting words was accepted in several countries as a means of making the will accord with the testator's clear intentions and the court could see no reason or justification to differentiate between deletion and any other change.ii) The court had the impression that the English court would have liked to go further if not bound by the Wills Act and precedents which were not of application in Jersey. It expressed the view that "statute has now intervened in England to achieve the same result as would be achieved by the court accepting a general power of rectification".
iii) There was no reason to follow the English decisions rather than the Canadian approach which was perceived to be wider.
iv) Policy considerations favour such a jurisdiction being assumed in order to prevent the testator's clear intentions being thwarted because of "a clerical or other mistake".
"….we decline the formalistic view that [testamentary] intent attaches irrevocably to the document prepared, rather than the testamentary scheme it reflects. Certainly, had a carbon copy been substituted for the ribbon copy the testator intended to sign, it could not be seriously contended that the testator's intent should be frustrated…..Here the situation is similar. Although Harvey mistakenly signed the will prepared for his wife, it is significant that the dispositive provisions in both wills, except for the names, were identical."
"We are not concerned on admission to probate with the substantive content of the will; our attention must be focused on the paper writing itself. As to that, there can be no doubt whatsoever that Harvey Snide did not intend as his will the only document that he signed on August 13, 1970. "
"….why should the result be any different where, although the two wills are markedly different in content, it is equally clear that there has been an erroneous contemporaneous cross-signing by the two would-be testators, or where the scrivener has prepared several drafts for a single client and it is established beyond all doubt that the wrong draft has been mistakenly signed. Nor need imagination stop there. "
"15. South Africa has no legislation on the rectification of wills and the ambit of our courts' powers to rectify mistakes in a will has been the subject of considerable judicial disagreement. While there has never been any dispute in regard to the court's power to correct clerical errors or an erroneous description of a beneficiary or a benefit in a will, or to delete form a will words or provisions included in it by mistake, there were conflicting decisions concerning the court's power to rectify a will by inserting words or provisions which have been omitted in error or by substituting the correct words or provisions for incorrect ones which have been mistakenly included in a will. It is now generally accepted that the South African courts do have this latter power.
16. Rectification is an equitable remedy, the purpose being to give effect to the true intention of the relevant parties or of the testator or testatrix concerned. A court will rectify a will where, due to a mistake, be it on the part of the testator or testatrix or on the part of the drafter, the will does not correctly reflect their testamentary intention. The applicant for rectification must establish that (a) the alleged discrepancy between expression and intention was due to a mistake; and (b) what the testator or testatrix really meant to provide. The onus, which must be satisfied on the balance of probabilities, is on the party seeking rectification."
Kitchin LJ:
The President of the Queen's Bench Division:
Thus the plain and understandable emphasis is that the devolution of the estate of a testator should be written out for all to see in a document which, so far as is possible, can be shown to be the product of the testator himself. The probate procedure is designed to ensure that the document or documents which are proved do record the intention of the testator. …. The authorities establish that if it is shown by extrinsic evidence that a document which appears to be a will was not intended by the maker to operate as such then it will not be admitted to probate.