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United Kingdom Supreme Court
You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Marley v Rawlings & Anor  UKSC 2 (22 January 2014)
Cite as:  WLR(D) 18,  Fam Law 466,  WTLR 299,  1 All ER 807,  2 WLR 213,  2 FLR 555,  AC 129,  UKSC 2, 16 ITELR 642,  1 AC 129
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 UKSC 2
On appeal from:  EWCA Civ 61
Marley (Appellant) v Rawlings and another (Respondents)
Lord Neuberger, President
JUDGMENT GIVEN ON
22 January 2014
Heard on 3 December 2013
Robert Ham QC
Teresa Rosen Peacocke
(Instructed by Hugh Cartwright & Amin)
Nicholas Le Poidevin QC
(Instructed by Gillan & Co)
See also:  UKSC 51
LORD NEUBERGER (with whom Lord Clarke, Lord Sumption and Lord Carnwath agree)
The factual and procedural background
The factual background
"This is the last will of me ALFRED THOMAS RAWLINGS of 15A Hillcrest Road Biggin Hill Kent TN16 3UA
1. I REVOKE all former wills and testamentary dispositions.
2. IF MY wife MAUREEN CATHERINE RAWLINGS 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 CATHERINE RAWLINGS fails to survive me by a period of one calendar month I appoint TERRY MICHAEL MARLEY 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 THOMAS RAWLINGS have hereunto set my hand the day of 1999: .
SIGNED by the testator in our presence and then by us in his:
Signature, name, address Signature, name, address of attesting solicitor: of attesting secretary:
The procedural background
The legal background
The formal requirements of a will
"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) each witness either
(i) attests and signs the will; or
(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary."
"It is not, and cannot be, in dispute that, before admitting the document to probate, the judge needed to be satisfied that it did truly represent the testator's testamentary intentions; or, to use the traditional phrase, that the testator 'knew and approved' its contents. Nor is it in dispute that, if satisfied that the testator knew and approved of part only of the contents of the document, the judge was bound, before admitting the document to probate, to require that those parts with respect to which he was not so satisfied be struck out".
Interpretation of wills
"(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."
Rectification of wills
"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."
Section 20(2) provides that, save with the court's permission, no application for rectification under subsection (1) can be made more than six months after the grant of probate. Section 20(3) protects executors who distribute in accordance with the terms of a will before it is rectified after the six-month period referred to in subsection (2).
The issues on this appeal
The appellant's contention on interpretation
"[T]here is not, so to speak, a limit to the amount of red ink or verbal rearrangement or correction which the court is allowed. All that is required is that it should be clear that something has gone wrong with the language and that it should be clear what a reasonable person would have understood the parties to have meant."
The appellant's contention on deletions
The appellant's contention on rectification: introduction
The appellant's contention on rectification: is it rectification?
The appellant's contention on rectification: is the document a "will"?
The appellant's contention on rectification: is it a clerical error?
"The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert. The remedy is only available if it can be established not only that the will fails to carry out the testator's instructions but also what those instructions were."