Mirror will signed by wrong spouse
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A mirror will that is mistakenly
executed by the testator’s spouse will not be retrospectively
rectified following the decision 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. On the death of the survivor, the wills provided for
everything to pass to Terry Marley, who they had treated as their
son. However, an error in the execution of the wills whereby Mr and
Mrs Rawlings each signed the will of the other spouse, was not
picked up at the time and resulted in the combined estate passing
to their two natural sons, under the intestacy rules. Mr and Mrs
Rawlings had not mentioned their two natural sons in the wills and
clearly did not intend them to benefit.
Mr Marley brought an action to
challenge the outcome on two grounds. One was that the wills were
properly executed in accordance with s.9 of the Wills Act 1837,
insofar as the testator intended his signature to give effect to
the will he signed. However, Mrs Justice Proudman rejected this
argument stating that if asked whether he had intended 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 allows the Court to rectify mistakes in wills and Mr
Marley’s solicitor argued that the Court should use the power
conferred by this section to rectify the mistake in this case.
However, this 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 stated that
s.20 cannot ‘extend to something beyond the wording of the will’.
In the current case there was no error in drafting 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 responsible for the
mistake.