When a will is drafted the person making the will expects the will to state their final wishes in a clear manner regarding how their assets should be distributed on their death.
However, if there are errors in the will making the intentions are unclear or even ambiguous – can the will be altered to correct these?
Historically, where there are errors in a will, the courts have had the power to amend the wills to rectify the errors (known as rectification). However, only in very limited circumstances, will the court rectify a will. These circumstances are detailed in Section 20 of the Administration of Justice Act 1982 which states:
“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 as to carry out his intentions.”
The Act did not however give guidance on the interpretation of the word ‘clerical error’ and since the introduction of this statutory provision there have been attempts in number of cases to provide such a definition by the courts.
Two recent cases, which are detailed have given guidance on the issue of rectification and “common sense” seems to have prevailed.
Case Study - Marley v Rawlings 
This case concerned a married couple Mr and Mrs Rawlings whom due to an error on the part of their solicitor executed the will that had been prepared for the other. Each spouse was given by mistake the other’s draft will to sign, therefore Mr Rawlings signed the will meant for Mrs Rawlings and Mrs Rawlings signed the will meant for her husband, their solicitor and his secretary attesting the signatures on both the documents without noticing the error.
The wills which were on identical terms, commonly known as a mirror will, the only difference being the identity of the maker. The wills left everything to a Mr Marley whom the couple had treated like a son although he was not related to the couple. It was only in 2006 when Mr Rawlings passed away that the error was discovered.
Mr and Mrs Rawlings’ two sons contested the will and challenged the validity of Mr Rawlings’ will, if the will was considered to be invalid by the court, Mr Rawlings would have died intestate and therefore the sons would have been entitled to £70,000. Mr Marley began court proceedings based on the case that Mr Rawlings’ will should be rectified so it recorded what he had intended. The case proceeded to the Supreme Court, overruling the decision by the Court of Appeal. Mr Rawlings will was found to be valid and ‘Clerical error’ was stated to include errors involving office work of a relatively routine nature such as preparing, filing, sending and organising the execution of a document.
The Judge also noted that when the courts are faced with the task of interpretation or construction of a contract, the court will try to find the intention of the party or parties by interpreting the words used in their documentary, factual and commercial context, and that the same approach should also apply to interpreting wills.
Case Study - Brooke v Purton and Others 
This is the first case to be decided since Marley v Rawlings and concerns a Testator, Mr Huntley whom wanted to divide up his substantial estate which was worth approximately £7m on his death equally between his five children and his cohabitee. Due to his concerns of the ability of two of his minor children to manage a large inheritance, he on the advice of his solicitor agreed to arrange a discretionary trust which was to include his business assets – the principal component of his estate, with the other, less valuable assets making up the residue.
Due to an error by his solicitor, there was nothing to enter the trust as the net chargeable value of the estate after deduction of reliefs was £1.5 m and everything would pass under the absolute gift of residue, against the specific wishes of the Testator.
David Donaldson QC, sitting as a Deputy High Court judge stated that it was clear that the literal reading of the will could not plausibly represent the intentions of Mr Huntley, and that “it is clear that something had gone seriously wrong and how”.
He went on to state that the Testator’s will should be simply interpreted to give effect to their intentions and to achieve this, a Clause in the will was to be construed as being omitted. In doing so David Donaldson stated that it was not necessary to consider rectification, which he said he would have used if necessary to come to the same conclusion.
Interpret or rectify?
So in the light of Marley v Rawlings, are the courts to interpret or rectify a will – does it matter? Lord Neuberger stated that however it is by no means simply an academic issue of categorisation which particular approach is used.
If the approach is that of interpretation, then the document in question has, and has always had, the meaning and effect as determined by the court. If however the approach is one of rectification, “then the document, as rectified, has a different meaning from that which it appears to have on its face, and the court would have jurisdiction to refuse rectification or to grant it on terms.”
It also has to be noted that Administration of Justice Act 1982, s 20(2) states that no application for rectification under subsection 20 (1) can be made more than six months after the grant of probate.
However, what is apparent is the fact that the courts are adopting a common sense and commercial approach to interpretation of wills, wishing to uphold the Testator’s last intentions.