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Marley v Rawlings – A dose of common sense?

 

Article date:  23/01/2014

The Supreme Court has overturned a decision by the Court of Appeal which refused to 'rectify' a will that was incorrectly signed by the wrong spouse.

In 1999, married couple Alfred Thomas Rawlings and Maureen Catherine Rawlings wished to make a new will. The 'mirror wills' were relatively simple and were essentially in exactly the same terms.

Mr Rawling left his entire estate to Mrs Rawling and vice versa. If either of them pre-deceased the other, the entire estate would pass to Terry Michael Marley who was not related to them but whom they treated as their son.

When signing their wills, Mr Rawling inadvertently signed Mrs Rawling's will, and Mrs Rawling signed Mr Rawling's will. This error was not spotted at the time the wills were signed or when Mrs Rawling died in 2003. In 2006 however, when Mr Rawling passed away, the error was discovered.

A dispute arose between Mr Marley and Mr & Mrs Rawling's sons, Terry and Michael, as to whether the will was valid and to establish who should inherit Mr Rawling's estate.

Broadly speaking, Mr Marley applied for the will to be rectified on the basis that there had been a 'clerical' error in the wrong wills being signed pursuant to s.20 of the Administration of Justice Act 1982. The Court of Appeal upheld the trial judge's decision that Mr Rawling's will could not be rectified, even though he wished for Mr Marley to inherit. The court said it did not have the power to rectify the will as there was no will to rectify.

However, the Supreme Court has reversed that decision holding Mr Rawling's will should be rectified. It was held 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.

Gavin Faber, head of Higgs & Sons contentious trusts and probate team, welcomes this decision, stating: "Simple errors of this nature are something that can happen to any testator or will draftsman. The Supreme Court's decision is clearly one that adopts a common sense approach given that both Mr Rawling and Mrs Rawling wished for Mr Marley to inherit their estates if they were pre-deceased by the other."

The decision widens the scope for the Courts to rectify wills and codicils on the basis of the clerical error, which previously was largely limited to typing errors.

However, Gavin warned that this decision should not be treated as a reason to take a relaxed approach: "This ruling may lead some practitioners to believe that if a mistake is made, it can simply be undone. This is certainly not the case. 

"Those involved in the will making process should always be alert to avoid mistakes of whatever nature. Otherwise there will be scope for disagreement and costly litigation may follow. The moral is to ensure that things are done correctly in the first place."

For more information on will related issues, please contact Gavin Faber at gavin.faber@higgsandsons.co.uk or Douglas Houghton at douglas.houghton@higgsandsons.co.uk. You can also call on 0845 111 5050.

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