Solicitors fear more wills claims could follow Neuberger decision to rectify error
The Supreme Court’s decision to rectify a “clerical error” in a will could open the “floodgates” to further litigation, solicitors have warned.
In Marley v Rawlings [2014] UKSC 2, Mr and Mrs Rawlings had wished to benefit Terry Marley but exclude their own two sons. When their wills were executed, there was an administrative mistake and they inadvertently signed each other’s wills.
The High Court and Court of Appeal held that the Rawlings’ estate would pass through the intestacy rules to their two sons. However, the Supreme Court overturned their decisions and held that the will could be rectified to allow Marley to benefit.
James Lister, associate at Charles Russell, says: “Commentators will be inclined to say that this is a further example of the Supreme Court working hard to find a way to ‘do the right thing’, as they did in the landmark decision in Prest v Petrodel [2013] UKSC 34 last year.
“However, the judgment also brings in a new area of uncertainly to what was previously a very rigidly applied area of law. The risk of a ‘floodgates’ scenario for those seeking to continue to widen the notion of ‘clerical error’ is clear and we are likely to see more claims being brought in relation to seeking to uphold or amend wills which would not have previously been possible. The impact of the Supreme Court’s decision could yet be far reaching for future claims.”
Delivering the lead judgment, Lord Neuberger said: “Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context.”
Matthew Duncan, partner at Kingsley Napley, says: “The concept of ‘clerical error’ has now been a given a wider meaning by the Supreme Court. To date, it was thought only typing errors could be fixed. This has now been extended to include mistakes arising from office work of a routine nature such as preparing, filing, sending, and organising the actual execution of a will."
