Marley v Rawlings & Anor

A will is invalid where the testator signs a different will from the one intended, because the signature does not give effect to the document signed. The error concerns the identity and testamentary content of the document, rather than wording recorded in it.

The statutory power to rectify a will for clerical error under Administration of Justice Act 1982, s 20, does not extend to replacing the wrong will with the intended one. The power remains confined to errors in the expression or recording of the intended testamentary words.

The claimant sought rectification under s 20 of the Administration of Justice Act 1982 of a will executed by Alfred Thomas Rawlings. Through a solicitor’s mistake, Mr Rawlings signed the will prepared for his wife, while she signed his. The documents were mirror wills intended ultimately to benefit the claimant.

The claimant also sought probate of the will as rectified. The construction claim was abandoned. The issues were whether the signed document satisfied s 9(b) of the Wills Act 1837 and, alternatively, whether s 20 supplied jurisdiction to substitute the intended will.

1. Validity under the Wills Act 1837. The claim failed because s 9(b) requires that it appear that the testator intended by his signature to give effect to the will. Mr Rawlings intended to sign his wife’s will, not the document bearing his signature. The defect invalidated the whole document.
2. The court rejected the approach in Guardian Trust and Executors Company of New Zealand Ltd v Inwood and Others, which treated signing the wrong document as a difference of degree from signing a carbon copy of the intended will. The reasoning in In the Goods of Hunt and Re Meyer was accepted as correctly applying in the present circumstances.
3. Rectification under s 20. Although In re Seligman gives clerical error a wide meaning, the error must concern the wording of the will sought to be rectified. Here both wills were correctly drafted. The mistake was that the wrong will was tendered for signature. Section 20 could not authorise rewriting the document.
4. The claim for rectification and probate of the will as rectified was dismissed.