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January 23, 2014updated 11 Jan 2016 2:25pm

Case of the mis-signed wills comes to a surprising conclusion

By Spear's

A man’s inheritance from his adoptive parents has been saved in a historic ruling by the Supreme Court – which held that the parents’ wills were valid even though they had mistakenly signed each other’s.

Mr and Mrs Rawlings made mirror wills in 1999 leaving everything first to each other and then to their ‘adopted’ son Terry Marley. Disastrously, the solicitor preparing the wills did not notice that he had given them each the wrong will to sign.

The mix-up gave the Rawlings’ natural sons grounds for challenge and both the High Court and the Court of Appeal found that the wills were not valid, meaning that Mr and Mrs Rawlings died intestate and their £70,000 estate passed entirely to their natural sons. This was clearly not what they had wanted.

Terry Marley appealed to the Supreme Court where five judges unanimously upheld his claim. Lord Neuberger gave the leading judgement. He said that courts should treat wills in the same way as commercial contracts. Traditionally, where there is an error in a contract which defeats the intention of the parties, the court has very flexible powers to put it right.

Lord Neuberger was very clear that when it came to rectifying mistakes in wills, courts should be as generous as the letter of the law will allow. He held that ‘clerical error’ should be defined very widely. To date, courts have applied a narrow definition, restricting rectification to cases where there has been a typo. However, the correct definition is now not just about the wording of the will but also where there has been an error in, for example, filing or organising execution.

The judges then considered to what extent Mr Rawlings’ will could be rectified and decided no rectification is too big provided that there has indeed been a clerical error.

This case makes a lot of points in fact that will be of great interest to private client advisers and lawyers. Lord Neuberger has swept aside a few preconceptions that courts could not do certain things but actually, when you look at the black letter law, there is no real reason why not. On the whole common sense has prevailed.

Where administrative mistakes arise in the execution of a will in the future there is now a clear precedent that the guiding principle must be the obvious intention of the deceased. While such mistakes are rare, they have in the past proved disruptive to families and costly to overseeing solicitors. Mr Marley will not be the only beneficiary of this decision.

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Sarah Playforth is a private client lawyer at Kingsley Napley LLP

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