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Is the Court taking a more lenient approach to correcting errors in wills?


In the recent case, Marley v Rawlings and another [2014] UKSC 2, the Supreme Court decided that a mirror will signed by the wrong spouse could be rectified.

The case involved a husband and wife, Mr and Mrs Rawlings, who had instructed a solicitor to prepare simple wills for them both in mirror terms, a mirror will.

On the first death, they wanted the other spouse to be the executor and sole beneficiary of their estate. On the second death, they wanted Mr Marley to be the sole executor and beneficiary of their combined estates. Mr Marley was not related to the Rawlings but he lived with them and they treated him as their son.

The solicitor who prepared the wills met with the Rawlings so that he could supervise the execution of their wills but mixed up the Wills when he handed them over to sign. Mr and Mrs Rawlings therefore each signed the Will which had been prepared in the name of the other. The error only came to light after the second death, that of Mr Rawlings. It was believed that the effect of the error meant that the Will did not comply with the formal requirements to be a valid Will and therefore could not take effect.

Mr Marley therefore applied to the High Court to rectify Mr Rawlings’ will under section 20 of the Administration of Justice Act 1982. Under this section, the Court has power to rectify a will if the will fails to carry out the testator’s intentions because of either:

Mrs Rawlings’ two sons (who would otherwise inherit under the rules of intestacy if the Will could not be admitted to Probate), defended the claim. As the Rawlings’ property had passed by survivorship to Mr Marley outside of the estate, the value of the estate being contested was in the region of £70,000.

Both the High Court and subsequently the Court of Appeal held that the Will could not be rectified. Mr Marley therefore sought permission to appeal to the Supreme Court. The appeal was allowed and by a unanimous decision, the Supreme Court held that the Will could be rectified on the basis that the error made by the solicitor who mixed up the two wills was a clerical error. It was therefore decided that the Will of Mr Rawlings should be rectified so that it contained the typed text of the Will signed by Mrs Rawlings in place of the typed text in the Will signed by Mr Rawlings.

The decision is a further clear example of the Court’s willingness to give effect to a testator’s intentions wherever possible and could be seen as the Court widening the definition of a ‘clerical error’. Claims for rectification however can only be brought where the testator’s intentions can be shown.

As solicitors specialising in Disputed Wills, Trust and Probate, we are seeing an increase in the number of enquiries involving errors or mistakes in wills and other testamentary documents (such as codicils and deeds of variation). In the majority of cases (and where the people affected are in agreement), errors in Wills can be rectified following an application to the Probate Registry and a contested dispute can be avoided. The key is to act quickly.

Clarion’s Disputed Wills, Trust and Probate team are always happy to have a look over wills or other testamentary documents where errors have been spotted or concerns have been raised. If you would like any assistance or just an initial chat, please feel free to contact us on 0113 246 0622.

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