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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Marley v Rawlings & Anor [2014] UKSC 2 (22 January 2014) URL: http://www.bailii.org/uk/cases/UKSC/2014/2.html Cite as: [2015] AC 129, [2014] 1 All ER 807, [2014] Fam Law 466, [2015] 1 AC 129, 16 ITELR 642, [2014] WLR(D) 18, [2014] WTLR 299, [2014] 2 WLR 213, [2014] UKSC 2, [2014] 2 FLR 555 |
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Hilary Term
[2014] UKSC 2
On appeal from: [2012] EWCA Civ 61
JUDGMENT
Marley
before
Lord Neuberger, President
Lord Clarke
Lord Sumption
Lord Carnwath
Lord Hodge
JUDGMENT GIVEN ON
22 January 2014
Heard on 3 December 2013
| Appellant Robert Ham QC Teresa Rosen Peacocke (Instructed by Hugh Cartwright & Amin) |
Respondents Nicholas Le Poidevin QC Alexander Learmonth (Instructed by Gillan & Co) |
See also: [2014] UKSC 51
LORD NEUBERGER (with whom Lord Clarke, Lord Sumption and Lord Carnwath agree)
valid.
The factual and procedural background
The factual background
Rawlings and his wife, Maureen Rawlings, were visited by their solicitor to enable them to execute the wills which he had drafted on their instructions. The wills were short and, except for the differences required to reflect the identity of the maker, they were in identical terms. Each spouse left his or her entire estate to the other, but, if the other had already died or survived the deceased spouse for less than a month, the entire estate was left to the appellant, Terry Marley, who was not related to them but whom they treated as their son.
Rawlings was in these terms:
"This is the last will of me ALFRED THOMAS
1. I REVOKE all former wills and testamentary dispositions.
2. IF MY wife MAUREEN CATHERINE
3. IF MY said wife MAUREEN CATHERINE
IN WITNESS whereof I the said ALFRED THOMAS
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:
.. ..".
Rawlings was in identical terms save that it was, of course, in her name instead of that of her husband, so that "ALFRED THOMAS RAWLINGS" was replaced by "MAUREEN CATHERINE RAWLINGS", and "my [said] wife MAUREEN CATHERINE RAWLINGS", "her", "his", and "testator" were respectively replaced by "my [said] husband ALFRED THOMAS RAWLINGS", "him", "her", and "testatrix".
Rawlings signed the will meant for Mrs Rawlings, and Mrs Rawlings signed that meant for Mr Rawlings, and the solicitor and his secretary attested the signature on each document, which was then dated 17 May 1999.
Rawlings died in 2003, and her estate passed to her husband without anyone noticing the mistake. However, when Mr Rawlings died in August 2006, the error came to light.
Rawlings was a joint tenant with the appellant of the house in which they both lived, so the tenancy passed to the appellant through the doctrine of survivorship. In addition, there was some £70,000 in Mr Rawlings's estate.
Rawlings, Mr and Mrs Rawlings' two sons, challenged the validity of the will which Mr Rawlings had signed. If it was valid, the appellant would inherit the £70,000 under its terms, whereas if it was invalid, Mr Rawlings would have died intestate, and the respondents would inherit the £70,000.
The procedural background
Rawlings's will ("the Will") should be rectified so as to record what he had intended, ie so as to contain what was in the will signed by his wife ("the wife's Will"), and that probate should be granted of the Will as so rectified.
Marley's claim, on the grounds that (i) the Will did not satisfy the requirements of section 9 of the Wills Act 1837 ("the 1837 Act"), and (ii) even if it had done so, it was not open to her to rectify the Will under section 20 of the Administration of Justice Act 1982 ("the 1982 Act") - [2011] 1 WLR 2146.
The legal background
validity of a will and the interpretation of a will, and a few cases where rectification of a will has been considered. The formalities have for a long time largely been laid down by the 1837 Act. By contrast, until very recently at any rate, the interpretation and possible rectification of wills was an issue which Parliament was content to leave to the judges.
The formal requirements of a will
validity is concerned, the centrally important statutory provision, both in general terms and for present purposes, is section 9 of the 1837 Act ("section 9"). That section has been amended or re-enacted on a number of occasions. Most recently, it was re-enacted by section 17 of the 1982 Act, which is headed "Relaxation of formal requirements for making wills".
"No will shall be
(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."
v Strum [2002] 1 WLR 1097, para 59:
"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
very recently) to approach the issue detached from, and potentially differently from, the approach adopted to the interpretation of other documents.
v Simmonds [1971] 1 WLR 1381 and culminating in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900.
v) common sense, but (b) ignoring subjective evidence of any party's intentions. In this connection, see Prenn at 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 8, per Lord Bingham, and the survey of more recent authorities in Rainy Sky, per Lord Clarke at paras 21-30.
v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, "No one has ever made an acontextual statement. There is always some context to any utterance, however meagre." To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, that "[c]ourts will never construe words in a vacuum".
v Eagle Star Life Assurance Co Ltd [1997] AC 749, per Lord Steyn at 770C-771D, and Lord Hoffmann at 779H-780F.
v Hill & Smith Ltd [1982] RPC 183, 243, cited with approval, expanded, and applied in Kirin-Amgen at paras 27-32 by Lord Hoffmann. A notice and a patent are both documents intended by its originator to convey information, and so, too, is a will.
view, at least subject to any statutory provision to the contrary, the approach to the interpretation of contracts as set out in the cases discussed in para 19 above is therefore just as appropriate for wills as it is for other unilateral documents. This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see eg Theobald on Wills, 17th edition, chapter 15 and the recent supplement supports such an approach as indicated in RSPCA v Shoup [2011] 1 WLR 980 at paras 22 and 31). Indeed, the well known suggestion of James LJ in Boyes v Cook (1880) 14 Ch D 53, 56, that, when interpreting a will, the court should "place [itself] in [the testator's] arm-chair", is consistent with the approach of interpretation by reference to the factual context.
"(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."
view, section 21(1) confirms that a will should be interpreted in the same way as a contract, a notice or a patent, namely as summarised in para 19 above. In particular, section 21(1)(c) shows that "evidence" is admissible when construing a will, and that that includes the "surrounding circumstances". However, section 21(2) goes rather further. It indicates that, if one or more of the three requirements set out in section 21(1) is satisfied, then direct evidence of the testator's intention is admissible, in order to interpret the will in question.
Rectification of wills
verbal expression, does not accurately reflect the [parties'] true agreement" The Nai Genova [1984] 1 Lloyd's Rep 353, 359. It is available not only to correct a bilateral or multilateral arrangement, such as a contract, but also a unilateral document, such as a settlement - see In re Butlin's Settlement Trusts [1976] Ch 251. However, it has always been assumed that the courts had no such power to rectify a will see eg Harter v Harter (1873) LR 3 P&D 11 per Hannen P, and In re Reynette-James decd [1976] 1 WLR 161, per Templeman J.
"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
Rawlings's Will, properly interpreted, should be read, in effect, as if it was the document signed by his wife on 17 May 1999. The second contention was that the extent of Mr Rawlings's knowledge and approval of the contents of the Will was such that it could be validated, albeit with deletions. The third contention was that the Will should be rectified so as to accord with Mr Rawlings's intentions.
valid on the ground of rectification (which was the sole basis on which the case was considered in the courts below), he accepted that the interpretation argument ought to be considered first, and the deletions argument second.
The appellant's contention on interpretation
valid and effective is based on two propositions. The first is that the Will can be read together with the wife's Will, given that it is clear from the face of the two documents that they were signed on the same date, by a cohabiting husband and wife, and were in very similar terms and in the same style, and had the same witnesses. While not mutual wills (ie separate wills entered into pursuant to an agreement between the two testators as to the terms of their wills), they were clearly closely related, and therefore each could properly be looked at when interpreting the other. The second proposition is that, when one looks at the two documents, it is obvious what has happened, and in particular it is obvious that Mr Rawlings intended the Will to be in the form of the wife's Will. Accordingly, runs the appellant's case, that is how the Will should be interpreted and read.
Rawlings. However, he contends that this exercise is not one of interpretation at all, but one of rectification.
v West Bromwich Building Society [1998] 1 WLR 896, 912H-913E, Lord Hoffmann set out the principles which the court should apply when interpreting documents in five propositions. Most of the content of that passage is unexceptionable, although, in one or two places, the language in which the propositions are expressed may be a little extravagant; thus, the words "absolutely anything" in his second proposition required some qualification from Lord Hoffmann in Bank of Credit and Commerce, para 39.
v Persimmon Homes Ltd [2009] 1 AC 1101, paras 21-25. Having observed that the exercise of interpretation involves "decid[ing] what a reasonable person would have understood the parties to have meant by using the language which they did" and referring to the "correction of mistakes by construction", he said this:
"[T]here is not, so to speak, a limit to the amount of red ink or
vanishing point", if Lord Hoffmann's analysis is correct.
Rawlings's subjective intention, because his argument is still one based on interpretation. This point was made in In re Williams decd [1985] 1 WLR 905, 911G-H, where Nicholls J seems to have taken an orthodox view of interpretation. He said that "if, however liberal may be the approach of the court, the meaning is one which the word or phrase cannot bear, I do not see how
the court can declare that meaning to be the meaning of the word or phrase", and "varying or contradicting the language used, would amount to re-writing", which is "to be achieved, if at all, under the rectification provisions in section 20".
The appellant's contention on deletions
valid will, the testator must have known and approved of its contents see Fuller quoted in para 16 above. There is a rebuttable presumption that the testator knew and approved the contents of a regularly executed will with unexceptional provisions. However, that presumption may be rebutted by evidence of the circumstances in which the will was prepared or executed. It can also be rebutted where the will is so worded as to cast doubt on whether the testator can have known or approved of its contents. In the present case, the Will, as literally interpreted, plainly did not represent Mr Rawlings's intentions: accordingly, he cannot have known or approved of its contents, as it stood.
valid and admitted to probate as described in the last sentence quoted from Fuller in para 16 above. Examples of such cases are cited in Theobald, op cit, para 3-028.
validated by deleting (i) the opening sentence, (ii) clause 2, (iii) the first phrase of clause 3, and (iv) the reference to Mrs Rawlings at the end of the Will. If this were permissible, it would simply leave the Will as stating that the signatory, Mr Rawlings, revokes his previous wills and leaves his entire estate to the appellant.
view, this argument must be rejected. The most typical case where only part of a will is rejected on the ground that it was not known and approved by the testator, is where that part is self-contained eg a particular clause or subclause. One such example is in In the Goods of Oswald (1874) LR 3 P&D 162, 164, per Sir James Hannen P. However, it is also true that, in some cases, a simple word or expression can be deleted "if shewn to have been inserted by mistake" per Jeune J in In the Goods of Boehm [1891] P 247, 250.
view in, respectively, In the Goods of Hunt (1875) LR 3 P&D 250, at 252, and In re Meyer [1908] P 353, 354. Further, as Jeune J pointed out in Boehm at 251, there is obvious "difficulty [in] rejecting words where their rejection alters the sense of those which remain".
Rawlings pre-deceased her husband, because clause 2 is deleted: therefore, if Mr Rawlings had pre-deceased his wife, this argument would not work.
valid will by making the deletions suggested on behalf of the appellant.
The appellant's contention on rectification: introduction
valid was that it should be rectified pursuant to section 20, so that it had the effect which Mr Rawlings intended, namely that it essentially stated what was in the wife's Will.
validate the Will is too extreme to amount to rectification. The second is that section 20 only applies to a "will", and, because the Will, as executed, does not satisfy section 9 and/or because it was not executed with Mr Rawlings's knowledge and approval of its contents, it was not a "will", and therefore section 20 cannot be invoked. The third argument is that the rectification cannot be justified under either para (a) or para (b) of section 20(1). I shall consider those arguments in turn.
The appellant's contention on rectification: is it rectification?
Rawlings wanted to achieve when they made their wills and that was that [the appellant] should have the entirety of their estate and that [the respondents] should have nothing" (subject, of course, to the survivor enjoying the entirety of their property until his or her death). Thus, there is certainty as to what Mr Rawlings wanted, and there is certainty as to how he would have expressed himself (as there can be no doubt that he would have signed the will prepared for him if he had appreciated the mistake). Accordingly, this is a very clear case for rectification subject always to the two other points raised by the respondents.
The appellant's contention on rectification: is the document a "will"?
Rawlings; and that therefore it could not be rectified.
value, the Will was plainly not executed by Mr Rawlings with his full knowledge and approval. However, I have been persuaded by Mr Ham that it did not fall foul of section 9(a) or (b).
Rawlings signed it, and that he did so, both on the face of the document, and as a matter of fact, with the intention of it being his last will and testament. Thus, whatever else may be said about the document, it is, on its face (and was in fact according to the evidence), unambiguously intended to be a formal will, and it was, on its face (and was in fact according to the evidence), signed by Mr Rawlings, in the presence of two witnesses, on the basis that it was indeed his will.
validity does not mean that it cannot satisfy the formality requirements. In that connection, it is worth referring to what Lord Wilberforce said in In re Resch's Will Trusts [1969] 1 AC 514, 547E, where (approving what had been said by Luxmoore J in In re Hawksley's Settlement [1934] Ch 384, 395-396) he discussed the difference between the function of the court when considering whether to admit a will to probate and the function of the court if it subsequently interprets the will. As he explained, "[t]he fact that a document has been admitted to probate
does not prevent a court of construction from coming to the conclusion that this document has no operative effect".
Rawlings, but there is no doubt that it cannot be hers, as she did not sign it; as it was Mr Rawlings who signed it, it can only have been his will, and it is he who is claimed in these proceedings to be the testator for the purposes of section 9. Accordingly, section 9(a) appears to me to be satisfied. It is true that the Will does not make sense, at least if taken at face value, but that is a matter for "a court of construction", as Lord Wilberforce explained. There can be no doubt, however, from the face of the Will (as well as from the evidence) that it was Mr Rawlings's intention at the time he signed the Will that it should have effect, and so it seems to me that section 9(b) was also satisfied in this case.
Rawlings, and even if the Court of Appeal had been right in their view that the Will did not satisfy the requirements of section 9(b) or (possibly) section 9(a), I consider that it would still be open for the appellant to invoke section 20. In other words, it does not appear to me that a document has to satisfy the formal requirements of section 9, or of having the testator's knowledge and approval, before it can be treated as a "will" which is capable of being rectified pursuant to section 20.
validity of the will", and, only if it was formally valid would it be open to the court to consider whether to rectify it. In terms of academic linguistic logic, I see the force of that point, but it appears to me to be wrong for a number of reasons.
value of section 20. If it could not be invoked to rectify a document which was currently formally invalid into a formally valid will, that would cut down its operation for no apparently sensible reason.
validity and rectification issues together, at least in a case such as this, where the two issues are so closely related.
valid unless it so complies, which clearly carries with it the irresistible implication that a document that does not so comply is none the less a "will" for the purposes of the section, but not a valid will.
valid will. After all, rectification operates retrospectively see eg per Lord Sterndale MR and Warrington LJ in Craddock Brothers v Hunt [1923] 2 Ch 136, 151 and 160.
validity, land contracts, rectification was permitted even where it had had the effect of converting an ineffective (albeit not an invalid) contract into an enforceable contract: see Domb v Isoz [1980] Ch 548, 559A-C per Buckley LJ, with whose reasoning Bridge and Templeman LJJ agreed. (That case was concerned with section 40 of the Law of Property Act 1925, which has now been replaced by section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989, which, in subsection (4) specifically envisages a contract which does not comply with subsection (1) being rectified so that it does.)
The appellant's contention on rectification: is it a clerical error?
Rawlings, as they were intended for Mrs Rawlings's will. Accordingly, if they are to comply with Mr Rawlings's intention, they should be replaced by the equivalent provisions of the wife's Will. The question is whether this can properly be achieved under section 20(1)(a).
v Georgiou [2002] EWHC 1080 (Ch) (quoted in para 7-42 of Hodge op cit):
"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."
virtually the whole of the document, can all be characterised as "clerical errors", giving the testator the wrong will is a mistake of a rather different character, which cannot naturally be referred to as a clerical error.
validate or "save" a will than previously. Section 17, which re-enacts section 9, is concerned with the "relaxation" of formalities (see para 14 above); sections 18 and 19 introduce greater flexibility in relation to the effect of the testator's marriage and death of his issue; section 20 introduces rectification for the first time for wills, and section 21 permits the testator's subjective intention to be taken into account for the first time. The whole thrust of the provisions is therefore in favour of a broad interpretation of a provision such as section 20(1)(a).
very different results in cases where the ultimate nature of the mistake is the same. If a solicitor is drafting two wills, and accidentally cuts and pastes the contents of B's draft will onto what he thinks is A's draft will, and hands it to A, who then executes it as his will, that will would be rectifiable under section 20(1)(a), as the solicitor's mistake would, on any view, be a clerical error see paras 72 and 73 above. On the other hand, if the solicitor accidentally gives B's will to A to execute, and A executes it, that would not, on the respondents' case, be a clerical error and therefore rectification would not be available.
view, however, the Report does not help, because, while it gives an example of a clerical error, it does not spell out the intended limits of the expression. Further, it seems that, in enacting Part IV of the 1982 Act, Parliament did not give effect to the recommendations of the Report in their entirety.
Conclusion
Rawlings in place of the typed parts of the will signed by Mr Rawlings.
LORD HODGE
very great difficulties in obtaining evidence to satisfy the court of the need to rectify a home-made will.
views do not have the benefit of counsel's researches, and must be treated accordingly.
v St John 1977 SC 255 Lord Maxwell used the remedy to correct errors in an irrevocable inter vivos deed of trust. A trust of that nature may have attributes similar to a will, and in particular beneficiaries who are not parties to the document.
v Lambie 1954 SC (HL) 43, Lord Reid stated (at 59) that the court could remedy an error on the part of the professional who instructed the preparation of a document as well as an error by the person who prepared it. He thought that the phrase "clerical error", which had been used in the case law, did not prevent the remedy from being available where a solicitor who had two old contracts gave his clerk the wrong one to copy as the style for a new contract. That is a circumstance not far removed from the facts in this appeal.