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Will Rectification

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The Wills Act 1837 prescribes certain formalities without which a will cannot be valid. In short, a will must be signed, the testator must have intended to give effect to the will by signing it and the will must be witnessed. The absolute need to comply with these technicalities has long been hard-wired into lawyers advising private clients.

With this in mind, the Supreme Court’s decision in the matter of Marley v Rawlings (2014 UKSC 2) may come as a surprise.

Mr and Mrs Rawlings made identical wills, each leaving their entire estate to the other with a substitutional gift to Mr Marley. Fate transpired against Mr and Mrs Rawlings and they each mistakenly executed each others wills. This error came to light when the surviving spouse, Mr Rawlings, passed away. If the will he had signed was valid, his estate went to Mr Marley. If it was invalid, he was intestate and his estate would pass automatically to his sons.

The Court now had to decide whether the will was valid and whether it could give effect to his intentions even though Mr Rawlings has signed the wrong will.

Section 20 of the Administration of Justice Act 1982 allows for mistakes in a valid will to be rectified if the court is satisfied that the document fails to carry out the testator’s intentions on account of a clerical error. Accordingly, Mr Marley applied to the court to rectify the will.

Lord Neuberger said that the document was a will capable of rectification because Mr Rawlings had signed it with the intention of it being his last will and testament, and it had been witnessed. The fact that the will he had signed referred to his wife’s estate did not therefore affect the validity of the will; it’s lack of sense was a matter for construction or rectification.

The Testator’s intentions were clear and this was a case suitable for rectification. Indeed, the mistake was not too extreme to prevent rectification. The court found that giving someone the wrong document to sign could amount to a simple “clerical error” as required by section 20. The Court allowed the rectification.

The case is notable for the shift away from a purely technical approach to the validity and interpretation of wills. Lord Neuberger said “Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context.”

The decision of the Courts is a welcome change from the former rigidity and inflexible approach previously taken. It will be interesting to see how this develops going forward and we will keep our website up to date.

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