Contact: Emma Butcher; Contact: Clarkslegal LLP (Reading, England)
A recent decision of the Supreme Court has confirmed that the courts will now take a more flexible approach to the rules which apply to the signing of wills.
In 1999 Mr and Mrs Rawlings instructed their solicitor to prepare identical wills which left everything to each other on the first death, and on the second death everything to Mr Marley, who they treated as a son but was not a blood relation. However, due to a mix up when they attended their solicitor’s office to execute the wills, Mr Rawlings signed Mrs Rawlings’ will and vice versa.
Mrs Rawlings died in 2003 and Mr Rawlings inherited her estate. No-one noticed the mix up. But when Mr Rawlings died in 2006, his two sons, who were not due to inherit anything under the wills, realised the error and challenged the validity of Mr Rawlings’ will.
The rules on execution of wills are contained in section 9 of the Wills Act 1837. This provides that in order to be valid:
- The will must be in writing
- It must be signed by the testator in the presence of two witnesses, each of whom must also sign
- The testator must intend his signature to give effect to the will
There is also a provision in section 20 of The Administration of Justice Act 1982 which allows the courts to rectify a will where, as a result of a clerical error, the will fails to carry out the testator’s intentions.
The High Court and subsequently the Court of Appeal found that Mr Rawlings’ will was not validly signed under section 9 and could not be rectified under section 20. Mr Marley appealed to the Supreme Court.
Lord Justice Neuberger, the president of the Supreme Court, decided that wills should be interpreted as commercial contracts are, in a way that gives effect to the testator’s intentions. Using this approach, the court decided that:
- The will was validly signed under section 9, even though it stated in the opening paragraphs that it was the will of Mrs Rawlings, because it was Mr Rawlings who signed it and it was his intention that the provisions contained in it should have effect
- Even if the will had not been valid under section 9, it was possible to rectify it under section 20. The error which had occurred in the signing of the two wills was clearly a clerical error of the type intended to be rectified by section 20
Accordingly the court found that Mr Marley, and not the two sons, should inherit Mr Rawlings’ estate.
The case is significant in that the courts have previously interpreted the provisions on execution of wills very strictly. It is thought that the case may now lead to a flurry of further claims being brought to uphold wills which would previously have been thought invalid.
