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Have you signed your spouse’s Will by mistake and they signed yours?

The Supreme Court was asked to rule whether a mirror Will signed by the wrong spouse could be rectified.

Have you signed your spouse’s Will by mistake and they signed yours?

For anyone in the field of Wills and probate, the requirement to meet the validity requirements of Section 9 of the Wills Act 1837 (WA 1837), will be etched on their minds. It states:

"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."

Marley v Rawlings and another [2014] UKSC 2

The Supreme Court was asked to rule whether a mirror Will signed by the wrong spouse could be rectified. According to Section 20 of the Administration of Justice Act 1982 (AJA 1982), the Court has the power to rectify a Will "if the will is so expressed that it fails to carry out the testator’s intentions because of either: a clerical error; or a failure to understand his instructions". In this case, the Solicitor handling the mirror Wills mixed them up then handing them to the testators for signature. Unfortunately, the error by the Solicitor did not come to light until after the death of Mr Rawlings (the second death). Mr Marley, the sole executor and beneficiary of the combined estates, applied to the High Court to have the Will rectified. This was refused by the High Court, who decided that Mr Rawlings hadn’t intended to give effect to the Will he signed as it was his wife’s Will. The Court of Appeal upheld this decision. The Supreme, however, disagreed and allowed the Will to be changed. In part, this was on the basis that that rectification on the ground of clerical error is not confined to cases of mistaken insertions and omissions in the text of a will.
This case was of particular interest as it broadened the definition of ’clerical error’, especially in cases where it does not conflict with the intentions of the testator.

This message was added on Friday 1st May 2020

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