I'm aware that the recent case of Marley v Rawlings may have barely caused a ripple in the charity sector. In the litigation world it was long-awaited and caused waves of concern.
As a litigation solicitor specialising in contested probate, I was one of those people awaiting the decision with bated breath. The case involved mirror wills on behalf of Mr and Mrs Rawlings. They were drafted by a solicitor and signed by the parties. The wills left everything to each other and then to Mr Marley, who had been treated as an adopted son. They left nothing to their two biological sons.
The wife died first and, under the terms of her will, all her property passed to the husband. When the husband died in 2006 it was only then discovered that the couple had accidentally signed each other's wills. The sons, who received nothing, challenged the validity of the wills.
The Supreme Court found that the error could constitute a 'clerical error', thereby allowing the court to amend the will and carry out the father's intention to benefit Mr Marley.
So what does this mean for charities? Previously, a clerical error was considered to be a drafting or typographical error. By expanding the interpretation of the definition of 'clerical error' – such as the signing of someone else's will by mistake – there are concerns that this will open the floodgates for probate litigation. Charities, which receive large amounts of legacy income, might be concerned about an increase in the number of claims brought by aggrieved relatives confident that the courts will adopt a wide interpretation of a will in order to assist them to inherit.
This was a common-sense approach by the court in interpreting the wills of Mr and Mrs Rawlings and their intentions. Test cases will undoubtedly follow, but it's doubtful that the courts will assist unfounded claims. Rather, I think it's welcome that the courts are adopting a pragmatic approach to resolve an otherwise uncomfortable decision. I acted in a High Court rectification claim only recently that referred to the Rawlings case. Again, the court was prepared to adopt a common-sense approach to the construction of wills, but it would still consider all the facts of the case as to whether the will should be rectified.
In wills, charities mostly receive either monetary gifts or the residuary (left-over) estate. They do not inherit on intestacy, where there is no will. Therefore, any approach adopted by the courts that will find a non-compliant will to be valid has got to be in charities’ favour.
Legacy officers and managers should continue to defend unfounded claims for rectification or will challenges and, when in doubt, obtain legal advice.
Tara McInnes is an associate in the dispute resolution team at Gardner Leader solicitors