Bermuda: Where There Is A Will, There May Be A (Costly) Way

Last Updated: 10 March 2014
Article by Appleby  

Family disputes over the provisions of a will are a relatively common occurrence in Bermuda courts.

Occasionally such disputes arise because of vague wording in the will document; imprecise drafting can raise questions as to the identity of the beneficiaries (persons benefiting under a will), the division of assets left to beneficiaries, the extent of the estate left by the testator (the person making the will), and so on. Other procedural gaffes may even jeopardise the validity of the will as a legal instrument.

Recent English case law underscores the hazards of such administrative oversight. In one instance, Marley v Rawlings, the lawyer drafted a pair of short and virtually identical wills for his clients, an elderly couple.

The only meaningful difference between the two wills was the name on each document: one copy was in the husband's name, the other in the wife's. For reasons that are not clear, the lawyer gave each spouse the wrong document. Thus the wife signed the will meant for the husband and vice versa. No one noticed this discrepancy after the wife passed. In fact, the mistake only came to light when her husband died three years later.

The terms of the husband's will left the matrimonial home and the estate (valued at 70,000 GBP) to a Mr Marley. Mr Marley lived in the couple's home and while he was biologically unrelated to the husband and wife, they evidently regarded him as a son. The couple's two biological sons disputed Mr Marley's interest in the estate and challenged the validity of the husband's will since it was his wife's name (but not her signature) on the document. If a court found the will invalid, the husband's assets would be treated as though he died intestate (i.e. without a will) and the sons would inherit the money left in the estate.

The High Court and Court of Appeal found in favour of the sons. Both courts held that the mistake on the husband's will meant that the document did not comply with the precise statutory formalities required of a will (in this case, section 9 of the UK Wills Act 1837), which therefore invalidated the document.

Both courts also held that failure to meet these formalities meant that the law barred rectification of an invalid will – rectification being the correction of a written instrument which, by mistake in expression, does not accurately reflect the true agreement or intention of the parties to it.

Mr Marley appealed to the UK Supreme Court which found that the lawyer's mistake in the drafting of the wills constituted a "clerical error" under the Administration of Justice Act 1982 and that the Wills Act did not bar the rectification of a will document blemished by such error.

In light of the husband's avowed intention to leave the entire estate to Mr Marley and given that the lawyer committed a "typographical" bungle rather than misinterpreted the couple's intent, the UK court held that it could rectify the mistake. The court approved a correction that validated the will with the typed portions of the will signed by the wife, substituted for the typed parts of the will signed by the husband.

Some lessons may be drawn from the above.

First, in spite of this particular lawyer's regrettable inattention to detail, professional legal counsel remains the best option when it comes to drafting a will. If Mr Marley had lost his appeal, the lawyer could have been faced with legal action for the loss that Mr Marley suffered as a result of the lawyer's mistake.

Second, examine any will thoroughly; if a person has difficulty reading or understanding the document, he or she must insist that the drafter explain the terms clearly to his or her satisfaction. In this case, just checking the document thoroughly before signing it would have revealed the blunder.

Third, clarity of intention is an unqualified virtue in drafting a will document – the husband's obvious intentions greatly assisted Mr Marley's case.

Fourth, while Bermuda courts have not yet had to consider Marley v Rawlings, it is probable that they will accept the UK court's rationale given that Bermudian statute law (section 31 of the Wills Act 1988) provides equivalent language for rectification of a will.

Last and by way of summary, the potential consequences of faults in draft work are as menacing for lawyers as they are for clients.

Article first published in The Royal Gazette, February 2014

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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