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21st February 2014

Where there’s a Will there’s a way…

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In January of this year, the Supreme Court made a landmark ruling in the case of Marley –v- Rawlings & Another [2014] UKSC 2, unanimously declaring that a mirror will signed by the wrong spouse can be rectified and admitted to Probate.

The Facts

In 1999, Mr and Mrs Rawlings instructed their solicitor to prepare wills in identical terms. The terms of the wills were straightforward with each spouse leaving their entire estate to the other providing that they survived the deceased by more than a month. In the event that the other spouse did not survive for the required period, the entire estate was left to Terry Marley ("Terry"), who was looked on as a son by the couple, although he was not a blood relative.

The solicitor visited Mr and Mrs Rawlings at their home to witness the execution of the mirror wills but, unfortunately, mixed them up when they were handed to the couple to be signed. As a result they each signed the will which had been prepared in the name of the other. Surprisingly, the mistake only came to light on the second death, that of Mr Rawlings in August 2006, Mrs Rawlings’ estate having passed to her husband without anyone noticing the error.

Terry applied to the Court for rectification of Mr Rawlings’ will under section 20 of the Administration of Justice Act 1982 ("the 1982 Act"). The claim was defended by Mrs Rawlings’ sons who stood to inherit the estate under the Intestacy Rules if the will could not be admitted to Probate.

The Law

To admit a will to Probate it must have been duly executed under section 9 of the Wills Act 1837 (“the Wills Act”). In brief, this section states that the will must be in writing and signed by the testator (or the signature acknowledged) in the presence of two witnesses who must each sign the will or acknowledge their signature in the presence of the testator. It must also be apparent that the testator intended by his signature to give effect to the will.

Section 20 of the 1982 Act provides that the Court has the power to rectify a will if it fails to carry out the testator’s intentions because of either a clerical error or a failure to understand his instructions.

The decision of the High Court and the Court of Appeal

The High Court held that the will was not executed in accordance with section 9 of the Wills Act. Mr Rawlings had not intended to give effect to the will he signed because it was his wife’s and not his own. In any event, the Court held that section 20 of the 1982 Act did not apply because there had been no clerical error.

The Court of Appeal confirmed the High Court’s decision, holding that the will did not meet the requirement of the Wills Act. Given that no valid will existed, the Court did not need to consider the possibility of rectification under section 20 of the 1982 Act.

The Final Word

The Supreme Court overturned the decisions of the lower Courts and said that a will should be interpreted in the same way as a commercial contract. In other words, the key to its interpretation will be to identify the intentions of the testator by looking at the words which have been used in the will and the circumstances in which it was prepared.

Advocating a common sense approach, the Supreme Court held that the will did meet the formal requirements of the Wills Act. Mr Rawlings had signed the document with the intention of it being a will. Accordingly, section 20 of the 1982 Act applied. The error made when the wills were signed could be considered as a “clerical error” even though it was not a case where the error related to the insertion or omission of text in a will. The Court’s broad interpretation of what amounts to a “clerical error” meant that Mr Rawlings’ will was rectified to contain the typed parts of the will which he had signed on his wife’s will.

This decision is a welcome one and confirms the Court’s continuing willingness to give effect to a testator’s intentions if at all possible.

If you have any questions or concerns relating to the circumstances in which a will has been prepared our Contentious Trusts and Probate Team can advise you.

For further information please contact Kate Harris on 01223 532762 or click here to email Kate.