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Contentious Probate - Brooke v Purton [2014] - First use of Marley ruling in will rectification

The High Court has applied the recent Supreme Court decision in Marley v Rawlings to decide whether to rectify the Will of the testator, Mr Steven Huntley, on "clerical error" grounds.  
 
In Marley v Rawlings a husband and wife drew up identical Wills but, due to an oversight by the solicitor, they mistakenly signed each others'' Wills.  The Supreme Court decided that this could be regarded as a ‘clerical error,’ so the Court was able to "rectify" it.  Had the Court not been able to do so the Wills would have been completely invalid. Lord Neuberger, president of the Supreme Court, said that the Wills of Mr and Mrs Rawlings should be treated in the same way as a commercial contract in that an obvious oversight should not be allowed to invalidate the testators’ wishes.   This was a major extension by the Court of the ability to rectify Wills, which had previously been limited to typographical and similar errors.
 
In this latest case, Brooke v Purton, the solicitor who drafted the Will had included a standard clause creating a trust for the deceased''s wife  - even though the deceased was not married.  The Court agreed that the words "clerical error" should be given the new wide meaning as set out in Marley v Rawlings and decided it was appropriate to rectify the Will to reflect the deceased''s intentions.  This was good news for the deceased in this case (and also good news for the solicitors that drafted the Will, as it meant they did not face a potentially significant negligence claim) but commentators have observed that this more forgiving environment could mean many more cases being brought to Court seeking rectification on the grounds of "clerical error".  
 
The Courts are often wary of opening "floodgates", so it remains to be seen if this approach will continue.  At least for the moment, however, if there is a question about whether the terms of a Will reflect a testator''s intentions, now may be the time to take the point.  
 
If you would like advice on rectification, or indeed on any other inheritance or trust dispute, our Trusts and Estates Disputes Team would be happy to have an initial conversation without charge to see if we could help. In that case please call Robert Horsey on +44 (0)1884 203086.
 

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