Case Note

• Author: Barry C CROWN LLB (Jer), LLM (Lond), M Litt (Oxon); Solicitor (England and Wales); Associate Professor, Faculty of Law, National University of Singapore.
• Date: 01 December 2015
• Published date: 01 December 2015

WHERE THERE'S A WILL, THERE'S A WAY

Marley v Rawlings

[2014] 2 WLR 213

The UK Administration of Justice Act 1982 gives the courts a power to rectify wills. In Marley v Rawlings[2014] 2 WLR 213, the UK Supreme Court gave an extremely expansive interpretation to this power and said that the power existed not only by virtue of the English statute but also at common law. This case note considers the implications of this decision for Singapore. It is argued that this case has created considerable uncertainty in the law and that the position should be remedied by an appropriate statutory amendment.

I. Facts

1 Marley v Rawlings1 involved a most unfortunate fact situation. Mr and Mrs Rawlings instructed their solicitor to draft for them mirror wills in which each left his or her entire estate to the surviving spouse, but in the event that the other failed to survive, the entire estate would pass to Terry Marley, who was not related to them but who had been treated by them as their son. The wills made no provision for the Rawlings' two natural sons. The wills were drafted correctly, but when it came to execute them, the wills were mixed up by the solicitor with the result that Mr Rawlings signed the will prepared for his wife and Mrs Rawlings signed the will prepared for her husband. Both wills were witnessed by the solicitor and his secretary. The mistake was not noticed on Mrs Rawlings' death in 2003, but came to light only on Mr Rawlings' death in 2006. At the time of his death, Mr Rawlings was a joint tenant with Mr Marley of the house in which they both lived, so that the tenancy passed through the doctrine of survivorship. In addition there was some £70,000 in Mr Rawlings' estate.

2 Terry and Michael Rawlings, the two natural sons, challenged the validity of the will, as they stood to inherit the £70,000 if Mr Rawlings had died intestate. Mr Marley sought rectification of the will so that it should record what Mr Rawlings had actually intended and that probate should be granted of the will so rectified. The brothers were successful both at first instance and in the Court of Appeal. However, the Supreme Court ordered rectification of the will to make it accord with Mr Rawlings' intentions.

II. Relevance to Singapore

3 The Court of Probate has long exercised a limited jurisdiction to correct errors in wills by omitting words from the will which were inserted without the knowledge and approval of the testator.2 It was thought, however, that the court did not have the power to rectify the will by inserting words to make the will reflect the true intention of the testator. To remedy this defect, the UK Parliament legislated on the topic in s 20 of the Administration of Justice Act 1982.3 Section 20 is headed “Rectification”, and sub-s (1) provides as follows:

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.

4 Section 20(2) provides that, save with the court's permission, no application for rectification under sub-s (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 sub-s (2).

5 Although Marley v Rawlings was decided on the basis of the application of the English statute, it is of relevance even in jurisdictions, such as Singapore, which do not have a statutory provision for rectification of wills. This is because Lord Neuberger, giving the judgment in which all the other members of the court agreed,4 stated that in his view there was a power at common law for a judge to rectify a will in the same way as any other document.5 Assuming the Singapore courts accept this view, then it would be possible for a court in

Singapore to reach the same result as the UK Supreme Court on similar facts as Marley v Rawlings. Indeed, it would appear that the Singapore courts would have wider powers to rectify a will as they would not be bound by the restrictions contained in s 20(2).6

6 The judgment of Lord Neuberger is important also in Singapore because of his remarks on how a will should be interpreted. In his Lordship's opinion, the approach to interpreting wills should be the same as that applied to the interpretation of contracts. There was no reason for adopting a different approach towards the interpretation of wills. It was true that a will is made by a single party, whereas a contract is agreed between a number of parties. However, that distinction was not a convincing reason for adopting a different approach in principle to interpretation of wills. It was merely one of the contextual circumstances which had to be borne in mind when interpreting the document concerned.7 It should be noted, however, that these remarks are strictly obiter dicta, as the case was decided on the issue of rectification.

III. Arguments against rectification rejected by court

7 It was argued by counsel for the brothers that the correction sought here was too extreme to amount to rectification. This argument was rejected by Lord Neuberger. It was true that the claimed correction would involve transposing the whole text of the wife's will into the husband's will, but that did not prevent it from being “rectification” of each will. There was no reason in principle why a wholesale correction should be ruled out as a permissible exercise of the court's power to rectify. On the contrary, to impose such a restriction would be unprincipled and would lead to uncertainty.

8 A further argument against rectification was that the document signed by Mr Rawlings was not in fact his will at all. A will must be made with the knowledge and approval of the testator. It is precisely for this reason that a court of probate will omit words from a will which have been inserted by mistake without the testator's knowledge and

approval. In the present case, Mr Rawlings executed the document which...