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Mirror will signed by wrong spouse

Mirror will signed by wrong spouse

By Matthew Evans Senior Associate at Hugh James.

A mirror will which is signed by the testator’s spouse by mistake will not be rectified by the Court following the decision reached in Marley v Rawlings (2011 EWHC 161 Ch).

Mr and Mrs Rawlings had identical wills prepared by their solicitor in which each left everything to the other. Following the death of the survivor, the wills affirmed that everything would pass to Terry Marley, who they had treated as their son. During the execution of the wills an error occurred whereby Mr and Mrs Rawlings each signed the will of the other spouse. This was not picked up at the time and resulted in their two natural sons receiving the combined estate, under the intestacy rules. Mr and Mrs Rawlings had not made reference to their two natural sons in the wills and clearly did not mean for them to gain from it.

Mr Marley brought proceedings to challenge the outcome on two grounds. Firstly, that the wills were properly executed in accordance with s.9 of the Wills Act 1837, to the degree that the testator intended his signature to give effect to the will he signed. However, Mrs Justice Proudman rejected this argument stating if asked whether he had intended to do this he would have responded 'no, of course not, that is my wife's will'.

The second ground for the challenge was based on s.20 of the Administration of Justice Act 1982. This section permits the Court to rectify mistakes in wills. Mr Marley’s solicitor contended the Court should use the power conferred by this section to rectify the mistake in this set of circumstances.

His argument was rejected on the basis that the section only applies if the mistake was either a clerical error or a failure to understand the testator's instructions.

Mrs Justice Proudman affirmed that s.20 cannot ‘extend to something beyond the wording of the will’. In this case there was no error in drafting the will and as such s.20 could not apply and the Court refused to rectify the will.

Mr Marley intends to bring an action for negligence against the solicitor to blame for the mistake.

 

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