Recent cases have shown that the English courts are now prepared to take a flexible, common sense approach to interpreting wills where errors have been made. This apparently more relaxed interpretation of ‘clerical errors’ has raised concerns that it might lead to a flood of dubious rectification claims.
While there is always a possibility that meritless claims start making their way to courts when there is a perceived change to precedent, these judicial adjustments normally occur for good reason. In the context of the cases that heralded this change, the approach of the courts should be welcomed for their desire to avoid injustice.
Marley v Rawlings  and Brooke v Purton 
The two cases that have widened the concept of ‘clerical errors’ in wills are Marley v Rawlings  and Brooke v Purton . The former set the wheels in motion while the latter showed just how wide the discretionary scope that the courts have adopted can actually be.
In Marley v Rawlings a husband and wife, Mr and Mrs Rawlings, had been accidentally given each other’s wills to sign due to an oversight on the part of their solicitor. Their intention was that their estate would be left to Mr Marley upon both of their deaths. Due to the mistake, the Rawlings two sons challenged the validity of the will following the death of their father, who had survived his spouse. If Mr Rawlings died intestate then the sons would inherit instead of Mr Marley.
Lord Neuberger sitting in the Supreme Court held that the errors relating to the signatures could be rectified and Mr Marley inherited as the Rawlings intended. This extended the concept of ‘clerical errors’ beyond the realm of simple typographical mistakes that it was previously understood to include.
Following the Supreme Court decision in the Rawlings case, the High Court took the concept of clerical error even further in Brooke v Purton. In that case the drafting of a will to create a discretionary trust for inheritance tax planning had gone so seriously wrong that it almost did the opposite to what was intended if taken at face value. The court was asked to put it right either by construction or rectification.
Although the court changed the outcome of the will by construction, David Donaldson Q.C. sitting as a Deputy High Court Judge confirmed that the mistake would also have been amendable using the precedent applied in the Rawlings case. It could have been deemed a clerical error and the will rectified accordingly.
The Administration of Justice Act 1982 moved the law from a very restrictive position to enable wills to be rectified where clerical errors prevented it from carrying out the testator’s intentions. Until the Rawlings case ‘clerical error’ had received a fairly narrow interpretation.
Lord Neuberger’s treatment of clerical error has now enabled a wider interpretation such that wills can be treated more like commercial contract and rectified to give effect to the underlying intention of document.