(Supreme Court, Lord Neuberger, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge, 22 January 2014)
The husband and wife drew up identical wills in the presence of a solicitor and a secretary. Each will provided that they would each leave their estates to each other and in the event that the spouse failed to survive him or her by a month, to Mr Marley, whom they treated like a son. However, the husband and wife each signed the will meant for each other which was not noticed when the wife died but came to light after the husband died.
The estate was worth £70,000 and the husband and wife's two sons claimed the will was invalid and if so, they had died intestate, meaning the sons would inherit. In the Family Division the judge found against Mr Marley, holding that the judge did not satisfy the requirements of s 9 of the Wills Act 1837 and even if it had done so it was not open to her to rectify the will under s 20 of the Administration of Justice Act 1982. Mr Marley's appeal to the Court of Appeal was dismissed and he was granted permission to appeal to the Supreme Court.
The Supreme Court unanimously allowed the appeal and held that the will should be rectified so that it contained the typed parts of the will signed by the wife in place of the typed parts signed by the husband.
In interpreting a will the court was concerned with ascertaining the intention of the testator. Section 21 of the Administration of Justice Act 1982 confirmed that a will should be interpreted in the same way as a contract, but indicated that, if one or more of three requirements set out in s 21(1) was satisfied, direct evidence of the testator's intention was admissible.
It was unchallengeable that the husband signed the will with the intention of it being his last will and testament and that it should take effect as such. Section 9 was, therefore, satisfied. Pursuant to s 20 it was clear that a document did not have to satisfy the formal requirements of s 9 before it could be treated as a will capable of being rectified. It was enough that it was intended to be a will. The expression clerical error in s 20 carried the relatively wide meaning of a mistake arising out of office work of a relatively routine nature, such a preparing, filing, sending, or organising the execution of, a document, rather than the relatively narrow meaning of a failure in transcription. Consequently, the will fell within, and could be rectified under, s 20.