Wills Mistakes and Inheritance Disputes
A recent decision by the Supreme Court that a husband and wife’s intended heir should not lose out despite a mix up when the wills were signed may lead to a flood of wills dispute litigation. The law lays down clear rules for how wills must be created to be valid. However, the Supreme Court’s decision allows a much more flexible approach whereby the courts may effectively correct clerical errors to give effect to the deceased’s wishes.
In the case in question, Marley v Rawlings, a husband and wife, Mr and Mrs Rawlings had drafted mirror Wills in 1999. They intended to leave their estate to each other on the first death, with everything passing to their heir (a close friend, Mr Marley) on the second death. Mr Rawlings died in 2006 having survived his wife who died in 2003.
After his death, Mr Rawlings’ sons discovered that Mr and Mrs Rawlings had mistakenly signed each other’s Will and the Solicitor had failed to notice the mistake. They argued that their Father’s Will was invalid since it had been signed by the wrong person. If the Will was invalid, the estate would pass to them under the rules of intestacy.
For a Will to be valid it must meet the formalities of s.9 Wills Act 1837 which states that:
No Will shall be valid unless—
(a) it is in writing and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
In 2012 The High Court said it was not in its power to change the Will, despite there being no doubt that the Deceased had wanted Mr Marley to inherit. However in a Supreme Court judgment the decision was overturned and Lord Neuberger said: ‘I would therefore allow this appeal, and hold that the Will should be rectified so that it contains the typed parts of the Will signed by the late Mrs Rawlings in place of the typed parts of the Will signed by Mr Rawlings.’
The Courts are therefore looking for the Deceased’s clear intention where there has been an error which has led to a Will dispute. Notably the Supreme Court said the wills should be treated the same way as a commercial contract in that an obvious oversight should be corrected to bring about the deceased’s intention.
The judgment is important because until now it was thought that only typing errors could be fixed but the concept of ‘clerical error’ has now been given a much wider meaning.
Does this set a new precedent?
Whilst the decision is good news for Mr Marley, it does open the door to other potential challenges to a will. For example, what if the witnesses do not properly sign the will due to a clerical error? There is the risk that the courts start trying to correct other types of invalidly executed wills. This may lead to great uncertainty on the part of beneficiaries and executors.
The rules relating to the drafting and execution of wills are well known to solicitors and arguably the courts ought not interfere to correct mistakes. After all, had his case not succeeded, Mr Marley would presumably have had a claim for solicitors negligence against the firm who had made the original error.
If you are considering contesting a Will on the grounds that it isn’t valid then you should seek legal advice as a matter of urgency. At Redress Law, we specialise in contested Wills and probate, particularly inheritance disputes.
For a guide to contesting a will on the grounds of lack of proper execution visit http://www.redresslaw.co.uk/wills-and-probate-guide/contesting-a-will-on-the-grounds-of-lack-of-due-execution/
