Wills debate: Common sense prevailed or administration nightmare?

Published: 27/02/2014

We all know, in life, mistakes happen. The majority of time, when a mistake occurs, we pick ourselves up, dust ourselves off, learn from it and move on. However when a mistake occurs in someone’s Will this can be much harder to do and, typically, result in the Will being deemed invalid.

That is until a recent decision by the Supreme Court has turned this on its head, leaving many solicitors somewhat perplexed.

The case of Marley v Rawlings was unanimously upheld by the court despite the glaring error which occurred during the Will writing process when the husband and wife inadvertently sign one another’s Wills by mistake.

Typically this type of clerical error would have meant the Will was invalid. However Lord Neuberger upheld the original documents, basing the decision on commercial contract rules:

“When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions.

“When it comes to interpreting Wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a Will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context.”

On the surface this would appear that ‘common sense’ has prevailed, that this approach is a lot ‘fairer’ than to invalidate a Will because of an error. However there is concern that the lack of clarity surrounding what constitutes a ‘clerical error’ could create a much bigger problem by possibly opening the floodgates to litigation.

Linda Cummins is the Head of Wills and Probate at Goldsmith Williams:

“It can be devastating when a Will is deemed invalid and, as a result, the estate is administered under the Rules of Intestacy so leaving intended beneficiaries without an inheritance. You can understand the frustration of the testator’s loved ones when there has been an error which produces a result clearly against that which the testator wanted to achieve. For that reason this latest decision would appear to be a case of ‘common sense prevailing’ in a very fact specific case.

“However if this approach is to be ‘as standard’ there must be clarity surrounding the topic.

“We encourage anyone who is making a Will to enlist the help of a fully qualified solicitor. By having an experienced professional draft your Will you will minimise the risk of clerical errors occurring in the first place thus avoiding this potential costly legal situation.”

Content correct at time of publication