Will Not Invalidate

Until recently, it was established law that a will had to be signed correctly to be valid, however, the recent ruling by the Supreme Court in the case of Marley v Rawlings [2013] has cast a shadow of doubt over this presumption.

The case concerned a will of a husband and wife in which each spouse left their estate to the other – so called “mirror wills” which Mr and Mrs Rawlings drafted in 1999. They intended to leave their entire estate to the Claimant, Mr Marley, who was not a blood relation.  However, due to an alleged oversight by a solicitor, the two accidentally signed each other’s will.

The mistake came to light following Mr Rawlings’ death, 3 years after his wife in 2006, when his two sons who were excluded from the will argued that their father’s will was invalid because it had been signed by the wrong person.  In 2012 the Court of Appeal upheld a High Court decision that it had no power to change the will and thus Mr Rawlings had died intestate.  However, The Supreme Court, in overturning this decision, ruled that the aim is to identify the intention of the parties to the document by interpreting the words used in their documentary, factual and commercial context.  The court therefore ruled that the wills of Mr and Mrs Rawlings should be treated in the same way as a commercial contract in that an obvious oversight should not be allowed to invalidate their wishes.  The law has traditionally been generous in finding ways to fix errors in contracts. The Supreme Court saw no reason why the same principles should not apply to wills.

The ruling has essentially broadened the concept of clerical error, making it clear that clerical errors arising from routine work such as preparing and organising the execution of a will can now be potentially rectified by the court.  This is a significant development given that such errors have proved disruptive for families in the past.  

Richard Howells is a member of the professional body; ACTAPS, the Association of Contentious Trusts and Probate Specialists. Whether you are a claimant, trustee, beneficiary or personal representative and no matter what the circumstances our Contentious Probate Team has the professional expertise and experience to guide you through the process.