Transposed Wills: The Supreme Court on Interpretation of Contracts

In 1999, Alfred and Maureen Rawlings each decided to
execute a will leaving everything to each other and, should the other not
survive, to Terry Marley, whom they treated as their son. Their solicitor
prepared two simple wills in accordance with these instructions: each will was
a mirror image of the other. He presented it to them for signature. Unfortunately,
Mr Rawlings signed Maureen’s will and Mrs Rawlings signed Alfred’s will. There
was not the slightest doubt that this was a mistake. Could the court nevertheless
give effect to the testator’s intention? No, said Mrs Justice
Produman
and the Court of Appeal.
Yes, says Lord Neuberger, in giving the Supreme Court’s widely anticipated judgment
this week in Marley
v Rawlings
, which contains some important (and controversial)
observations about the interpretation of commercial contracts.

There is little more to be said about the facts,
except that the mistake did not come to light when Mrs Rawlings died in 2003. It
was discovered only on Mr Rawlings’ death three years later. As Mrs Rawlings
had predeceased him, Mr Marley would inherit if the will was valid. If the will
was invalid, Mr Rawlings be treated as having died intestate, and the property would
pass to his natural sons. Mr Terry Rawlings, the natural son, duly contested
the validity of the will. Mr Marley admitted that Mr Rawlings had signed the
wrong will but contended that the court had the power to rectify it. In
the general law, there was some doubt over whether the jurisdiction to
rectify—which undoubtedly did and does exist for contracts—can be exercised for
wills. In 1982, Parliament intervened to expressly confer the power by way of section
20 of the Administration
of Justice Act, 1982
. But the argument for Mr Terry Rawlings was that: (1) this section only applies if ‘a will
is so expressed that it fails to carry out the testator’s intentions’; there is
no ‘will’ unless it has been signed by the testator (under section 9(a) of
the Wills Act, 1837
) and therefore no power to rectify; (2) in any event, the power to rectify
is confined to the correction of ‘clerical errors’ and signing the wrong will
is not a clerical error. Mrs Justice Proudman accepted both objections and,
echoing the words of Sir James Hannen in an old case, said ‘much as I regret the blunder, I cannot
repair it
’. In the Court of Appeal, Lady Justice Black, giving the leading
judgment, agreed with the view that there was no jurisdiction to rectify as
this document was not a ‘will’ and therefore did not decide the second point. Mr
Marley appealed to the Supreme Court.

In the Supreme Court, leading counsel for Mr Marley advanced
the argument that it was open to the court to interpret (not rectify)
the will to give effect to what was plainly Mr Rawlings’ intention. The
inspiration for this argument—and the reason for the difficult issues that have
arisen in recent years about the difference between interpretation and
rectification—was the approach of Lord Hoffmann in Investor Compensation Schemes v West Bromwich Building Society and
other well-known cases. As we have noted on this blog, Lord Hoffmann in these
cases—dealing with contracts, not wills—explains that interpretation is the
ascertainment of the meaning the document would convey to a reasonable third
person with all the background knowledge the parties to the contract would
reasonably have had, except pre-contractual negotiation and evidence of
subjective intention. It follows, said Lord Hoffmann, that it is misleading to suggest
that a judge is bound by the ‘natural and ordinary’ meaning or ‘grammatical’
meaning of the words used: if it is clear that ‘something has gone wrong’, the
judge can interpret the document as a reasonable third
person (realising that something has gone wrong) would have done (his famous example of Mrs Malaprop illustrates the point). So ‘January 12’ can
mean ‘January 13’ and “any claim (whether sounding in rescission for undue
influence or otherwise)”
can mean “any claim for rescission (whether sounding
in undue influence or otherwise)”
, in both cases without resorting to
rectification
.

As the Supreme Court notes, Lord Hoffmann’s approach
has raised many difficult issues. Lord
Justice Buxton
and Lord
Justice Lewison
(see Chapter 9) have suggested that it virtually renders rectification
redundant (except that pre-contractual negotiation is admissible in a
rectification action) and Lord Grabiner (2012 LQR) has argued that the words
chosen by the parties nevertheless remain the starting point—and often the final
destination. In Marley, Lord Neuberger began by holding that
there is no obvious reason to not apply the same principles of interpretation
to contracts and wills: the fact that contracts are bilateral while wills are
unilateral makes no difference. With respect, although it would have made no difference
on the facts of this particular case, it is not obvious this is correct: the
fulcrum of the modern approach to the interpretation of contracts is founded on
the common law’s ‘objective’ theory of contract which is concerned not with
what the parties actually intended but with the manifestation of their intention. As Professor Atiyah pointed out
on numerous occasions, one of the justifications for adopting this theory is to
protect the reasonable expectations of the counterparty, which it is not
obvious carries over to wills.

Turning to the merits, Lord Neuberger cast some doubt
on the language used by Lord Hoffmann in setting out his (now famous) five propositions
of interpretation in West Bromwich (‘the
language in which the propositions are expressed may be a little extravagant’)
and described the all-important second sentence of Proposition 5 as ‘controversial’.
Although he preferred not to express a concluded view on this ‘difficult’ question
as it was unnecessary to do so, he did explain why the difference between
rectification and interpretation can have important practical consequences:

40. At first sight, it might seem to be a rather dry question
whether a particular approach is one of interpretation or rectification.
However, it is by no means simply an academic issue of categorisation. If it is
a question of interpretation, then the document in question has, and has always
had, the meaning and effect as determined by the court, and that is the end of
the matter. On the other hand, if it is a question 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 (eg if there had been delay, change of position, or third party reliance).This
point is made good in relation to wills by the provisions of section 20(2) and
(3).

The reason it was unnecessary to decide the
interpretation point was that Mr Marley was able to persuade the Supreme Court
that it had jurisdiction to rectify the will. This, of course, turned entirely
on the two questions set out above: could the will signed by Mr Rawlings be
described as a ‘will’ for the purposes of section 20 of the 1982 Act and if so
was the error a ‘clerical error’? Lord Neuberger held that the will signed by
Mr Rawlings is a ‘will’ even though the person named in it as the testator is
Mrs Rawlings. This was because one must separate the existence of a will (and formality requirements) from its construction: the signature appended to
the will was undoubtedly Mr Rawlings’ and therefore the section 9 hurdle was
crossed. Further, the Court held that the expression ‘clerical error’ should be
construed widely and accordingly includes not only errors of ‘copying’ or ‘typing’
but also errors of this type.

The case is an important one: for commercial lawyers,
it is a reminder, if one was needed, that the common law is yet to fully work out the implications
of Lord Hoffmann’s approach to the interpretation of documents.

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V. Niranjan

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