Honest mistake

Tuesday, 01 May 2012
A case where a couple's final intentions were overruled because of a simple admin error.

The late radio DJ John Peel once said: ‘I never make stupid mistakes, only very, very clever ones.’ Wishful thinking, perhaps, as it’s often the simplest errors that turn out to be the most stupid and damaging. That was certainly the case in Marley v Rawlings,1 where a recent Court of Appeal judgment ruled an adopted son should lose his inheritance because the parents had signed a copy of each other’s will by mistake, despite the clarity of their intentions. The case is a reminder of not only the importance of correct execution of wills, but also the risk of unforeseen consequences. Lawyers need to be aware there is the increasing possibility of being sued by clients over simple acts of negligence, as may transpire in this case. They should also note a 2011 recommendation to the Legal Services Board that highlighted a widespread problem with the quality of will writing in the UK.

Mr and Mrs Rawlings made mirror wills in 1999, each leaving everything to the other on first death and then to Terry Marley on the second death. Mr Marley had lived with the couple since 1975 and latterly cared for them. Although never formally adopted, he was treated as a son by the family. The Rawlings’ two biological sons, to whom they were not close, were effectively disinherited from their parents’ GBP70,000 estate.

The couple’s solicitor and his secretary attended their home for executing the wills. However, the documents were switched in error prior to signature and Mr and Mrs Rawlings signed each other’s wills, witnessed by the solicitor and his secretary, who didn’t register the error at the time. The mistake was noticed after Mr Rawlings died in 2006.

This seemingly simple admin slip-up had enormous consequences, as it meant that, in law, the couple died intestate. While Mr Marley had been the couple’s sole carer until they died and it was clear the intention was to reward him, because of the intestacy rules, the Rawlings’ biological sons inherited everything in equal shares.

Last year, Mr Marley applied to the High Court to request that the will be rectified under s20 of the Administration of Justice Act 1982. An application under s20 may be made where it can be shown that a will cannot be proved because of a clerical error. Cases decided in Commonwealth jurisdictions were presented, but the Court did not feel it was appropriate to decide whether the will could be rectified under s20 without considering the validity of the will under s9 of the Wills Act 1837, which states the following must be in place: ‘It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and it appears that the testator intended by his signature to give effect to the will…’

It was decided the will must fail under the requirements as set out in s9(b) of the 1837 Act on the basis that the testator could not have intended to give effect to the will because it was his wife’s will and not his.

In turning to s20 of the 1982 Act, the definition of clerical error deals with the requirement that the court is ‘satisfied that a will is so expressed’ that it does not carry out the testator’s original intentions. As the error in this case was not a drafting error, the Judges could not extend this definition beyond the wording of the will, as the will perfectly expressed the testator’s wishes: it just did not bear his signature. Therefore, Mr Marley’s claim failed.

Court of Appeal

In February, the Court of Appeal gave judgment, having reconsidered whether the High Court’s findings on the formal validity of the will were correct. The appeal Judges considered that the function of s9 of the 1837 Act is concerned with questions of form, whereas s20 of the 1982 Act is concerned with the content of the will. In summing up, Black LJ wrote: ‘I find it very difficult to conceive of a set of circumstances in which rectification ordered under section 20 could enable an otherwise invalid would-be will to satisfy the requirements of section 9 without rocking the very foundations of that section at the same time.’

Marley v Rawlings highlights how easy it can be to get things wrong

Yet again, the requirements of s9(b) were the stumbling block. While it was agreed that Mr Rawlings intended to give effect to a will when he placed his signature on the document in front of him, he did not intend to give effect to the will he actually signed. Dismissing the appeal, Kitchin LJ wrote: ‘This is a conclusion I have reached with great regret…’ This Court of Appeal decision thus confirms the primacy of the s9 requirements. While they appear simple enough, this case highlights how easy it can be to get things wrong.

Poor drafting was found equally between solicitors and will-writing services

Apparently, it is now Mr Marley’s intention to pursue an action against the solicitor who drafted and witnessed the wills. If so, this case serves not only as a valuable lesson on the importance of correct will execution for clients, but also as a reminder to solicitors of the potentially disastrous consequences to themselves, as advisors, where the basic formalities of will-making are not followed to the letter of the law.

Will-writing regulation

Last year, the Legal Services Consumer Panel reported to the Legal Services Board on whether or not will-writing services should be regulated in England and Wales, as planned in Scotland. The report looked at the problems faced by consumers, the effect on beneficiaries and testators, and the advantages and disadvantages of regulating providers of will-writing services.

Arguments for and against regulation have raged for some time, with those in favour being swayed by the many horror stories of clients being overcharged for a service they do not understand and often receiving poorly drafted wills, while those against are concerned that restricting the service to qualified solicitors will only limit consumer choice.

As part of the report, the Panel found that one in four wills failed – irrespective of complexity – for reasons such as invalidity, failure to properly reflect the client’s wishes, inconsistent language and poor presentation. Perhaps more worrying was that poorly drafted wills were found equally between solicitors and will-writing services. As the Rawlings case demonstrates, having qualified lawyers does not necessarily help ensure a quality result.

For both legal practitioners and those who regularly provide will-writing services, the Rawlings case should be a wake-up call. Even the most experienced solicitors can make the simplest and most basic errors, rendering a will legally invalid. The risk for client complaint obviously increases where complexities are involved, such as where clever tax planning and domicile are an issue. More often than not, errors do not come to light until the original testator has died, but the door is open for benefactors to sue. Cases such as White v Jones2 confirmed that solicitors owe a duty of care to the intended beneficiaries, and Esterhuizen v Allied Dunbar3 ensured that this duty of care can be extended to a non-solicitor.

Further reading

STEP leaflet: Building Consumer Confidence in Will Writing

This publication outlines the problems in the will-writing market and what STEP is doing to give consumers confidence.

STEP report: Cowboy Will Writing – Incompetence and Dishonesty in the UK Wills Market

This STEP policy briefing looks into the UK will-writing market and incorporates a survey of STEP members that illustrates common problems faced by consumers in the industry: www.step.org/research-reports.

Bold: Professional development

STEP qualification: STEP Advanced Certificate in Will Preparation (England and Wales)

This is a collaborative qualification from STEP and Central Law Training (CLT). Study to gain a recognised qualification in this field, enhance your ability to give holistic advice to clients as a ‘trusted advisor’, develop your own technical competence, help build your reputation and business as a will draftsman and enhance your private client services more generally, and fulfil your annual STEP and SRA CPD requirements. If you are not already a STEP member, you can become an affiliate on completion of the Certificate.

www.step.org/pd

  • 1. Marley v Rawlings [2012] EWCA Civ 61.
  • 2. White v Jones [1995] AC 207.
  • 3. Esterhuizen v Allied Dunbar Assurance plc [1998] 2 FLR 668.
Author block
Right
Matthew Duncan, Irene McMillan

Matthew Duncan TEP is a Partner in the Private Client team at Kingsley Napley LLP in London.
Irene McMillan is a Trainee Solicitor in the Private Client team at Kingsley Napley LLP in London.

Section
STEP Journal
Country
United Kingdom

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