Wills to be interpreted like contracts, Supreme Court rules

First published in the solicitors Journal on 28 January 2014 and reproduced here with their kind permission.

‘Clerical error’ given a broad definition including errors arising from routine work

Disputed wills should be interpreted using the same rules as those applicable to the interpretation of contracts, the Supreme Court has held in a case involving mirror wills where the spouses signed the other’s will instead of their own by mistake.

Distinguishing between a contract and a will on the basis that one was made between several parties and the other by a single party was “an unconvincing reason to adopting a different approach in principle to interpretation of wills,” said Lord Neuberger in Marley v Rawlings [2014] UKSC 2.

This, the Supreme Court president said, justified taking account of “surrounding circumstances” as evidence of the testator’s intentions and rectify a will accordingly.

In this case, Lord Neuberger went on, the mistake should be regarded as a ‘clerical error’ which the court could rectify under the Administration of Justice Act 1982.

The expression ‘clerical error’, he said, should be given a broad meaning beyond the insertion or omission of a word “as a result of a slip of the pen or mistyping”.

“The term ‘clerical error’ can, as a matter of ordinary language, quite properly encompass the error involved in this case,” he found. “There was an error, and it can fairly be characterised as clerical because it arose in connection with office work of a routine nature.”

As such, he concluded, the error was “susceptible of rectification”.

“The Supreme Court has taken a common sense approach to interpreting wills in the same way commercial contracts have been treated for over 40 years,” said Matthew Duncan, head of private clients at Kingsley Napley.

Duncan said the term ‘clerical error’ now clearly included mistakes arising from office work of a routine nature such as preparing, filing, sending, and organising the actual execution of a will.

Although such mistakes were rare, he said, they could be disruptive for families and costly to overseeing solicitors.

“The welcome point from today’s judgment is that the guiding principle must be the clear intention of the deceased in matters where an error has led to a will dispute,” he said.

Alfred and Maureen Rawlings had their wills drawn up in 1999, ultimately leaving their estate to Terry Marley, who was not related but whom they had treated as their son.

By an oversight which their solicitor admitted in his witness statement during the case, they had each been given and signed the will made for the other, and both wills had then been witnessed.

Mrs Rawlings died in 2003 and it was only after Mr Rawlings’ death three years later that the error came to light.

The Rawlings’ sons, who stood to inherit their parents’ estate worth £70,000, challenged the validity of Mr Rawlings’ will on the basis that it could not therefore have contained his intentions.

They succeeded at first instance and in the Court of Appeal but the rectification ordered by the Supreme Court will now allow Mr Marley to inherit instead.