Marley v. Rawlings

As I wrote in my most recent post, Fuchs v. Fuchs, I am looking at cases in other jurisdictions dealing with rectification of wills for a paper I am working on. I am not aware of any cases in British Columbia interpreting our new provision allowing for rectification of a will, section 59 of the Wills, Estates and Succession Act. Accordingly, I am looking elsewhere. Fuchs is an Alberta case. 

England has had legislation permitting rectification of wills for longer than either Alberta or British Columbia. Section 20 of the Administration of Justice Act, 1982, c. 53 is similar, but section 20 (1) is worded somewhat more narrowly than section 59 (1) of the WESA. Section 20 (1) provides:

(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. 

Section 20 was recently considered by the United Kingdom Supreme Court in Marley v.Rawlings, [2014] UKSC 2 (BAILII). In that case, two spouses intended to make wills leaving their estates to each other, with a provision that if the other did not survive by one month, each left the residue of his or her estate to Terry Michael Marley, who was unrelated, but they considered him to be like a son to them. The wills were straight forward enough, but with one problem: the husband signed will intended for the wife, and the wife intended to sign the will intended for the husband. After the husband’s death, his wife having predeceased him, the United Kingdom Supreme Court rectified his will so that it contained the typed parts of the will signed by his wife.