In the important judgment of Marley -v- Rawlings the Supreme Court considered whether a deceased’s Will could be valid when a husband and wife had each executed the Will meant for the other as a result of an oversight on the part of their Solicitor when he handed them the Wills for signature.

In 1999 Mr and Mrs Rawlings instructed their Solicitor to prepare their Wills. Their instructions were identical namely that each spouse was to leave the entirety of their estate to the other but if one of them had already passed away or failed to survive them by less than a month, the entirety of the estate would pass to Mr Terry Marley. Mr Marley was not related to Mr & Mrs Rawlings but they treated him like a son.

Mr & Mrs Rawlings did have two sons but, for whatever reason, no provision was made for them in their Wills.

On 17 May 1999 when Mr & Mrs Rawlings signed their Wills their Solicitor, in error, gave each spouse the other spouse’s Will. This was not noticed by anyone at the time and the Wills were simply signed by Mr & Mrs Rawlings and their signatures witnessed.

Mrs Rawlings died in 2003 and the entirety of her estate passed to Mr Rawlings without anyone noticing the error in the Wills. Mr Rawlings passed away in 2006. At the date of his death the house he and Mr Marley lived in was held by Mr Rawlings and Mr Marley as joint tenants and therefore Mr Rawlings’ interest in the property passed automatically (via the rule of survivorship) to Mr Marley. The value of the other assets remaining in Mr Rawlings’ estate was £70,000.

Upon discovery of the error in the Wills Mr Marley, who was also the Executor under the Will, made an Application to the Court to rectify the Will. It was Mr Marley’s position that Mr Rawlings’ Will should be rectified by the Court so as to record what was originally intended by Mr Rawlings. In other words the Will should contain what was in the Will signed by Mrs Rawlings and probate should be granted on those terms.

That Application was challenged by Terry Rawlings and Michael Rawlings (Mr & Mrs Rawlings’ sons). If the Court found the Will to be invalid (due to the error in signing the Will) Mr Rawlings would be deemed to have died intestate (i.e. without a Will) and under the rules of intestacy his sons would inherit his estate of £70,000. Whereas if the Court ruled the Will was valid then Mr Marley would inherit Mr Rawlings’ £70,000 estate and his sons would not receive anything.

Mr Marley’s Application for rectification of the Will was unsuccessful. It was held by the Court at first instance that Mr Rawlings’ Will did not satisfy section 9 of the Wills Act 1837. This was because the formal execution requirements had not been carried out as a result of which the Will was not signed with Mr Rawlings’ knowledge or approval.

The Court at first instance also held that it was not able to rectify the Will in accordance with its legislative powers as it determined that the error regarding signature was not a ‘clerical error’.

Mr Marley appealed to the Court of Appeal but the Court of Appeal upheld the judgment of the lower court.
However Mr Marley, relying on the intentions of Mr Rawlings, appealed to the Supreme Court.

The Supreme Court unanimously allowed Mr Marley’s appeal. They held that Mr Rawlings’ Will should be rectified so it would contain the typed parts of Mrs Rawlings’ Will in place of the typed parts of Mr Rawlings’ Will. Therefore in accordance with the intentions of Mr Rawlings, Mr Marley will now inherit the entirety of Mr Rawlings estate.

We at Blacks deal with all aspects of contentious probate proceedings, preparation of Wills, estate planning and the administration of estates.

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