By Martin Tumasang
Introduction
I have dealt variously
with the interpretation of the Cameroon Nationality law and supported opposing
positions at various points in order to put forward the various possible
reasoning on both sides. Whilst prima facie this might appear like intellectual
flip flopping, it helps to show the softscape from different angles.
Despite the generally
strict rules in interpreting wills and limitation on the correction of
non-clerical errors in wills, should the court use a pragmatic approach in
interpreting documents like wills and laws like the nationality law?. This does
not suggest that wills and the constitution are the same but it shows how the Administration
of Justice Act 1982 in the UK is interpreted.
Starting on wills, the approach below in the interpretation of a will by the UK Supreme Court might give
an insight into how a pragmatic approach might solve issues concerning wills or
such issues as found on the nationality law in Cameroon. The below treaties on
wills is culled from an article by another.
Interpretation of a will
The Supreme Court has
allowed rectification of mirror wills in the case of Marley v Rawlings
[2014] UKSC 2, where a couple had signed each other's wills by mistake.
Background
In 1999 Mr. and Mrs.
Rawlings instructed a solicitor to prepare mirror wills. Each spouse left his
or her estate to the other and upon the death of the surviving spouse to their
informally adopted son, Mr. Marley. Their two biological sons were
disinherited.
Due to an oversight by
the solicitor, Mr. and Mrs. Rawlings each signed the will meant for the other.
Mrs. Rawlings died in 2003. The mistake was not noticed until Mr. Rawlings died
in 2006. Mr. and Mrs. Rawlings' sons challenged Mr. Rawlings' will on the basis
that it was invalid as it was not signed by him. If the will was invalid, Mr.
Rawlings would have died intestate and his sons would inherit his Estate. If
the will was valid, Mr. Marley would inherit the Estate. Mr. Marley commenced
probate proceedings.
The solicitor who
drafted the wills admitted that he had accidentally given the wrong will to
each spouse to sign. At first instance the claim was dismissed on the grounds
that the will did not satisfy Section 9 of the Wills Act 1837 (in that the will
was not signed by the testator) and, even if the will had been signed by Mr.
Rawlings, the Court was unable to rectify the will under Section 20 of the Administration
of Justice Act 1982 (as the mistake was not a clerical error). The Court of
Appeal upheld the decision on the first ground and hence did not consider the
second.
Decision
The Supreme Court
allowed the appeal by Mr. Marley and held that the will should be rectified so
that it contained the typed parts of the will signed by Mrs. Rawlings.
The Court considered the
approach in commercial contracts, where the court is concerned to identify the
intention of the contracting parties, and considered that the approach to wills
should be the same. Further, the Court considered that section 21 of the 1982
Act (which allows for extrinsic evidence to be used to assist with the
interpretation of a will) supported this view and therefore a will should be
interpreted in the same way as any other document. In addition it was also
possible to refer to evidence of the testator's intentions.
The Court referred to
circumstances where a solicitor inserts the wrong word, figure or name into a
clause in a will. That would be a clerical error which could be rectified under
section 20 of the 1982 Act. The Court considered the outcome should be no
different where the mistake is the insertion of a wrong clause, provided the
testator's intentions were clear. The Court held that whilst the expression
"clerical error" can have a narrow meaning it could carry a wider
meaning to include a mistake arising out of office work such as preparing,
filing, sending and organising the execution of a document. A mistake in
connection with these activities could be "a clerical error" and
hence a will could be rectified.
(Above Article on wills
by Bond Dickinson LLP (© Copyright 2014).
Conclusion
If the Supreme
Court of England and Wales can take a business approach in interpreting
wills despite previous restrictions, then it might be suggested that the
Supreme Court in Cameroon should adopt such a pragmatic approach in
interpreting the nationality laws to avoid a possible absurd and strange
situation where a foreigner acquiring Cameroon nationality might keep his
original nationality, but a Cameroonian acquiring a foreign nationality must
renounce his Cameroon nationality. A pragmatic and reasonable approach to
interpretation is advised.
Dr. Martin Tumasang is a Barrister at law, Advocate/Notary Public/Solicitor, International Arbitrator, Chartered Valuation Surveyor, Principal Quantity Surveyor, Claims Quantum Consultant. He lives in England and he could be reached via email @ Tumasangm@hotmail.com
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