Neutral Citation Number: [2011] EWHC 161 (Ch)
Case No: HC 10C01702
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/02/2011

Before :

MRS JUSTICE PROUDMAN
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Between :

	TERRY MICHAEL MARLEY	Claimant	
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	(1) TERRY RAWLINGS
(2) MICHAEL RAWLINGS	Defendants	

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Philip Noble (instructed by Brunswick Law solicitors) for the claimant
Alexander Learmonth (instructed by Gillan & Co solicitors) for the defendants

Hearing date: 1 February 2011
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Judgment

Mrs Justice Proudman : 

1.	This is a claim for rectification of a will dated 17 May 1999 executed by Alfred Thomas Rawlings who died on 21 August 2006 and for probate in solemn form of the will as so rectified.
2.	An unfortunate mistake was made at the time of the execution.  On 17 May 1999 Mr and Mrs Rawlings’ solicitor attended on them at their home with his secretary for the purpose of executing the two wills which he had drafted for Mr and Mrs Rawlings.  The wills were in simple mirror form.  Each left the other his or her entire estate, but in the event that the spouse failed to survive, the whole was left to Terry Marley who was (or was treated as) their adopted son. Mr and Mrs Rawlings had two natural children (the defendants) but were not close to them and there is no doubt that the intention was to benefit Mr Marley alone on the death of the survivor.  Their house was vested in the three of them as beneficial joint tenants and the rest of the estate is worth some £70,000 net.
3.	By mistake Mr Rawlings executed the will meant for Mrs Rawlings and Mrs Rawlings executed the will meant for Mr Rawlings.  Both signatures were attested by the solicitor and the secretary and no-one noticed the error.   Indeed I am told that it was not picked up on the death of Mrs Rawlings in January 2003.   I do not know which of the wills was admitted to probate on Mrs Rawlings’ death but it may be that all assets were jointly owned so that neither was as probate was unnecessary.  At all events it is only now, after Mr Rawlings’ death on 21 August 2006, that the mistake has come to light.  In the event of intestacy, Mr and Mrs Rawlings’ sons Terry and Michael Rawlings inherit the estate.  If the present claim does not succeed, Mr Marley is holding the solicitor responsible for the error.

The claim
4.	A pleaded claim based on construction of the wills was not pursued before me.  The claim is now based solely on rectification under s. 20 of the Administration of Justice Act 1982.  Subsections (1) and (2) provide as follows:
“(1) 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 so as to carry out his intentions.

(2) An application for an order under this section shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out.”

5.	Mr Noble on behalf of the claimant submitted that rectification affords a proper means of reflecting the wishes and intentions of Mr and Mrs Rawlings.  He said that in recent years the approach of the courts in this and Commonwealth jurisdictions has been to give effect to the true wishes of a Testator where the evidence is plain that a mistake has been made.
6.	Prior to s. 20 of the 1982 Act the Court had no power to insert words in wills by means of rectification.  Rectification in what was described (at 81F of In re Morris [1971] P 62) as “a broad sense” could only be ordered, through the omission from probate of words of which the Testator did not know and approve.  Mr Noble submitted that since enactment of s. 20 the court could give effect to the Testator’s dispositive intentions by rectification and not merely and artificially through omission.
7.	Mr Noble relied on the development of the law of rectification, and in particular on the decision of Chadwick J in In re Seligman [1996] Ch 171.  Chadwick J postulated three questions for the court.  First, what were the Testator’s intentions with regard to the dispositions in respect of which rectification is sought.  Secondly, whether the will is so expressed that it fails to carry out those intentions.  Thirdly, whether the will is expressed as it is in consequence of either (a) a clerical error or (b) a failure on the part of someone to whom the testator has given instructions for the will to understand those instructions.  
8.	In Wordingham v. Royal Exchange Trust Company Limited [1992] Ch 412 it was held that the expression ‘clerical error’ meant an error in the process of recording the intended words of the Testator in the drafting or transcription of the will.  It was the nature of the error rather than the person who made it that rendered it a clerical error. In Seligman it was explained that the jurisdiction to correct clerical errors is not limited to errors in transcription but also extends to cases where the person drafting the will has not appreciated the significance or effect of the introduction (or deletion) of a particular provision.  There is a distinction between that situation and a failure by the testator to appreciate the effect of words deliberately used, where rectification is not available.
9.	Mr Noble submitted that the present case is a clear one of clerical error within Chadwick J’s formulation.  He relied on Re Price [2006] EWHC 2561 (Ch) and Re Clarke [2006] EWHC 2939 (Ch) as examples of the Court taking a broad and purposive approach to the application of s. 20.   He distinguished, as having been overtaken by the power conferred by s. 20 to rectify, the decisions in In the Goods of Hunt (1875) LR 3 P&D 250 (in which two sisters had made similar, but not mirror, wills and each executed that of the other) and Re Meyer [1908] P 353 (in which two sisters made mirror codicils and again executed that of the other), and in both of which cases the disposition was held to be invalid.
10.	Mr Noble particularly relied on a number of decisions of judges in other jurisdictions in which relief has been given in similar circumstances to the present where the testator signed the wrong will. 
11.	The first is a decision of the New Zealand Court of Appeal, Guardian Trust and Executors Company of New Zealand Ltd v. Inwood and Others [1946] NZLR 614 in which the Court admitted the will to probate, omitting words naming the testatrix.   Fair J delivering the judgment of the whole court said at 623,
“but it is submitted on behalf of the defendants, who are entitled under the intestacy, that it is not admissible to probate on the ground that it was not executed animo testandi- that is, that the testatrix did not intend to sign this document and that this document was never intended by her or anyone to be her will.  This would appear, upon careful examination, to be a very technical basis for its rejection, and upon an exact appreciation of the true facts, to lack substance.  True, the physical document was not the paper that the testatrix intended to sign, but it was a paper that contained everything that she wished included in the paper she intended to sign except the Christian names of her sister.  She adopted it believing that it expressed her intentions in every respect.  It does in most, and can be read as carrying out her intentions.  It appoints the executor she intended to appoint in the exact terms she intended to appoint it.  That in itself if it stood alone would be enough, apart from this formal objection, to entitle it to probate…It also disposes of the residue after the life interest in the exact terms except for the Christian name.  There is no doubt that she intended the document to which she put her signature to operate as her will.
If she had intended to sign the document in the original typewriting, and she had, by mistake, been given a carbon copy, she would have been executing a paper physically different from that which she intended to sign, but if it had contained a duplicate carbon copy it appears unarguable that document in carbon would be invalid on that ground.  The present will seems to us to differ from such copy only in degree and not in substance.  No doubt the circumstances of the recital with the wrong Christian name would call for explanation… But the fact that the paper put before the testatrix was different from that which she thought she was signing should not, we think, prevent that part of the document which she wished and believed, and which was, in fat, included, being her testamentary act.  The testatrix really did know and approve of the effective provisions contained in it…”

12.	The New Zealand court then went on to deal with the decisions in Hunt and Meyer, which it acknowledged were of great persuasive authority but which, ultimately, it sidelined and distinguished.
13.	A decision of the British Columbia Supreme Court, Re Brander [1952] 6 WWR (NS) 702,  followed Guardian, and two Canadian District Courts, in Re Knott Estate [1959] 27 WWR (Alberta) 382 and Re Bohachewski Estate [1967] 60 WWR (Saskatchewan) 635, later followed Brander.
14.	Finally, there is the case of Re Vautier 2000 JLR 351, decided by the Royal Court of Jersey, in which (among several other cases) Guardian, Brander, Knott and Bohachewski were considered as well as the English authorities.  The Royal Court summarised the position as follows at 360,
“To summarize, the common law of England recognized a power in the court to delete words from a will which were included by mistake but did not allow for power in the court to rectify by altering or adding to the wording of the will.  The law of New Zealand has recognised a similar power to delete.  It has not yet recognised a power to rectify by other alterations although in the case of McConagle [McConagle v. Starkey [1997] 3 NZLR 635], the court indicated that it was supportive of such an approach.  In Canada, the courts have exercised a power to rectify a will by altering the wording but the initial decision could be said to be based on a misunderstanding of Guardian Trust…”

15.	The Royal Court then went on to hold that it could order rectification of wills mistakenly signed in circumstances similar to the present.  It specifically pointed out that the English cases were based on the wording of the Wills Act 1837, which had no application in Jersey.  Mr Noble relied in particular on two passages lettered (b) and (d) at p 361,
“(b) The inability of the English courts to go beyond the power to delete seems to have been based upon the wording of the Wills Act and upon precedents established by the courts many years ago.  The dicta from some of the cases suggests that, given a free hand, the courts, in more recent times, would have striven to find a power of rectification.  The Wills Act is of no application in Jersey and there are no precedents in Jersey which deny a power of rectification…
(d) Policy considerations point in favour of such a jurisdiction.  It is clear that the English judges regarded the common law position as unsatisfactory and statute has now intervened to achieve the same result as would be achieved by the court accepting a general power of rectification.  It does not seem to us to be in the public interest for the court to have to stand idly by and let the testator’s clear intentions be thwarted because of a clerical or other mistake.” 
S. 20 of the 1982 Act was cited at p. 358 as the source of a power for the English court to rectify a will in order to carry out the testator’s intentions where there has been a mistake.
16.	Mr Noble submitted that the Royal Court was right and that (a) s. 20 has overtaken Hunt and Meyer and further that (b) s. 20 enables the Court to rectify the will executed by Mr Rawlings so as to give effect to his intention to benefit Mr Marley on the death of the survivor of Mr and Mrs Rawlings. The approach of the Jersey Court, as enshrined in the New Zealand and Canadian authorities, should therefore be adopted and followed.
17.	Before considering these questions I should mention one other authority, again decided on similar facts, a decision of the Supreme Court of Australia, Re Hendrikus Ignatius Hennekam deceased [2009] SESC 188.  In that case the other will, that is to say the will that was not signed by the testator but was prepared for him, was admitted to probate.  In Australia the relevant statutory provisions are different in two important respects.  First, a will may be admitted to probate even if it has not been executed in accordance with the prescribed formalities, provided that the court is satisfied of the deceased’s intention that the document should constitute his will.  Secondly, the statute confers a wide power of rectification to give proper expression to the deceased’s testamentary intentions.  It is to be noted that in Hennekam there was no question of admitting to probate the will actually signed by the testator in error.

Conformity with the Wills Act 1837
18.	S. 9 of the 1837 Act as amended provides that no will shall be valid unless—
“(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and …”

19.	The basis for Sir J Hannen’s decision in Hunt appears in the last part of his short judgment (my emphasis),
“A paper has been signed as this lady’s will, which, as it happens, if treated as her will, would to a great extent, although not entirely, carry out her wishes.  But in one respect it does not, for by it a legacy is bequeathed to one charity which she intended to leave to another.  As regards this legacy, it is suggested that it might be treated as if the deceased did not know and approve of that part of the will, but she did not in fact know and approve of any part of the contents of the paper as her will, for it is quite clear that if she had known of the contents she would not have signed it.  I regret the blunder, but I cannot repair it…”

20.	Similarly, in Meyer, Sir Gorell Barnes P said, at 354, (again my emphasis),
“But it is quite clear that this lady, though her signature is on the document, never meant to sign this particular codicil at all.  She meant to sign a totally different document.  It may be that this document contains provisions corresponding with what she wished to sign, because the two documents were cross-codicils by two sisters.  But, as a matter of fact, the deceased in signing her name to this codicil never intended to do that at all, but intended to put her signature to another document…”

21.	 In my judgment s. 9 (b) of the 1837 Act provides a complete answer to the claim, namely that the testator did not intend by his signature to give effect to the will which he signed.  If asked whether he did he would not have said, ‘yes, subject to correction of errors by substituting my wife’s name for mine wherever it occurs’.  He would simply have responded, ‘no, of course not, that is my wife’s will’.
22.	I do not therefore agree with the New Zealand Court that the difference between signing the wrong will and signing a carbon copy of one’s own will is a difference of degree not substance.  It is not the piece of paper which matters but the words recording the testamentary intention.
23.	It also seems to me that the opinion of the Royal Court of Jersey in Vautier that s. 20 of the 1982 Act overcame all difficulties with rectification in this situation was delivered per incuriam (as the issue was not, for obvious reasons, argued in detail) and I do not agree with it.  
24.	The New Zealand Court in Guardian gave two reasons (at 624 lines 20-25) for distinguishing Hunt and Meyer on the Wills Act point.  First, it was said that the decisions were reached on ex parte applications without full argument.  However, in both cases the Court found against the applicant, who was represented by counsel.  Secondly, it was said that the applications were not of substantial importance to the applicants, which is not how I read the judgments in those cases at all.   
25.	There were also other grounds for the decision, one of which was that it was not until after those cases were decided that the rule was firmly established that words or clauses introduced without the knowledge and approval of the testator could be rejected and the remainder of the will admitted to probate.  However that does not meet the point that the effect of signing the wrong document renders the whole, and not merely part, of the document invalid. 
26.	Accordingly I do not need to determine whether Hunt and Meyer are binding on me as in my judgment both Hunt and Meyer were correctly decided and apply in present circumstances.  I derive some comfort for this conclusion from the fact that both cases were cited without adverse comment by Morritt LJ in the Court of Appeal in Corbett v. Newey [1998] Ch 57 at 68F. 
27.	Accordingly, it seems to me that the claimant must fail on the ground that the requirement of s. 9 (b) of the Wills Act 1837 as amended is not met.

 s. 20 of the Administration of Justice Act 1982
28.	I now turn to the question whether, if I am wrong about the effect of the Wills Act 1837, s. 20 of the 1982 Act confers jurisdiction on the court to rectify in present circumstances.  Unlike, apparently, the statutory position in Australia as set out in the judgment in Hennekam, the power to rectify is limited (in the absence of a failure to understand instructions, which it is common ground does not apply to this case) to clerical error.  
29.	While, as explained in Seligman, the definition of clerical error bears a wide meaning, the error cannot in my view extend to something beyond the wording of the will which is sought to be rectified.  I note that in s. 20 there is a requirement that the court be “satisfied that a will is so expressed” that it fails to carry out the testator’s intentions.  There was no error of drafting in this case, whether by inclusion or by omission or by miscasting of words.  The wills were both correctly expressed; the error was simply that the wrong will was tendered for signature.  What if, instead of what actually happened, the solicitor had pulled a will prepared for a totally unconnected testator out of his briefcase and that one had been signed by mistake?  It flies in the face of common sense to say that the court would have jurisdiction to rewrite the will in that situation, but there can be no ground of distinction in principle.
30.	In my judgment, therefore, s. 20 does not provide a solution for the problem which has arisen.  I can only echo Sir James Hannen and say that much as I regret the blunder, I cannot repair it.  

Conclusion 
31.	The claimant must therefore fail in his claim to rectification of the will signed by Mr Rawlings and probate of that will as rectified.