Marley v Rawlings & Anor

A will must first satisfy the statutory formalities before the court can consider rectification. Under the Wills Act 1837, section 9(b) requires it to appear that the testator intended the signature to give effect to the particular document signed as the testator’s will. Intention to execute some will, even one containing substantially similar dispositions, is insufficient. A person who signs another person’s will has not authenticated his or her own will. This differs in kind from errors in a document that is the testator’s own will. Rectification under section 20 of the Administration of Justice Act 1982 cannot cure that failure.

Alfred and Maureen Rawlings prepared mirror wills. By mistake, each signed the will prepared for the other. The solicitor and his secretary attested the signatures, and the error was discovered only after Alfred’s death. Terry Michael Marley sought probate, contending that the document signed by Alfred could be admitted to probate, construed, or rectified so as to give effect to the couple’s intention that Marley inherit.

Proudman J dismissed the claim on 3 February 2011, holding that the document failed the formal requirement in section 9(b) of the Wills Act 1837 and could not be rectified under section 20 of the Administration of Justice Act 1982. The central issue on appeal was whether a person who signs another person’s will has validly executed a will.

1. The appeal was dismissed unanimously. Black LJ gave the principal judgment, with Kitchin LJ and the President of the Queen’s Bench Division agreeing.
2. Formal validity had to be determined before rectification. Section 20 of the Administration of Justice Act 1982 refers to a will, which in this context means a valid will. The court therefore had to examine the document as executed and decide first whether it complied with section 9 of the Wills Act 1837.
3. Section 9(b) requires the testator to intend, by the signature, to give effect to the particular document signed as his or her will. It is not enough that the signer intended to execute a will or intended testamentary provisions substantially similar to those in the document. The requirement has a practical and partly document-focused operation. The signature authenticates the written document as the testator’s will and, in a broad sense, confirms its testamentary contents. This approach was consistent with Wood v Smith [1993] Ch. 90 (C.A.) and the policy identified in Corbett v Newey [1998] Ch 57.
4. Alfred Rawlings intended to sign a will, but not the will placed before him. That document identified Maureen as its testatrix and was therefore another person’s will. The error was materially different from a mistake in the wording of the testator’s own will. The court could not cure the defect by construction, by admitting only the gift to Marley, or by rectification. The earlier decisions in Re Hunt and Re Meyer supported that conclusion. The court distinguished the more facilitative overseas authorities because of their different statutory contexts or declined to follow their approach.
5. Since the document failed section 9(b), it was not a valid will. It was unnecessary to decide whether the transposition amounted to a clerical error under section 20(1)(a). The President observed, obiter, that there were powerful arguments for giving section 20 a wide and generous scope, but left that question for a case in which it arose.

1. Court of Appeal (Civil Division): Appeal dismissed on [2012] EWCA Civ 61.
2. Chancery Division: Proudman J dismissed Marley’s claim for rectification and probate on 3 February 2011. No report or neutral citation was stated.