Is your will signed correctly
Marley v Rawlings case
As a reminder of the background to this important case, H and W Rawlings instructed a solicitor to draft Wills leaving all to each other on first death and on second death to a child who they had brought up as their son, but who was not theirs and had not been through the formal adoption procedure.
During the attestation, however, no one noticed that H had signed W’s Will, and W had signed H’s Will. W died in 2003, and as expected her estate passed to H – no-one at this stage noticed that the Will had been attested incorrectly.
In 2006 H subsequently died, leaving £70,000 in his estate. At this point the error came to light. However, H & W had two natural sons, and being obviously aware that H’s Will was in the face of it invalid as it had been signed by W at the time, they questioned the validity of said Will.
It was an important legal point, since if they failed to invalidate the Will then their father’s estate passed in its entirety to the child H & W had brought up as their son. If, however, they were successful in invalidating the Will then their father would have died intestate, and they would become the intestacy beneficiaries at the expense of the Will beneficiary, who as he was not a natural son, would then have been entitled to nothing. That child, however, sought to have the Will rectified such that it would be valid and he would become the sole beneficiary. The intention of H was clear. The question was, could the Will be rectified or was it invalid?
Law works to a definitive set of principles – in order to be able to rectify the Will it isn’t simply possible to in effect state, “oh we knew what the intention was so we’ll just strike out W’s signature and assume H had signed it”.
At first instance (i.e. a judgment made by a lower court) the judge referred to the formalities of the Wills Act and decided that the Will did not satisfy the formalities to sign the Will, and furthermore that another Act – the Administration of Justice Act did not give the judge the power to rectify anything other than a clerical error, as it was deemed that the error derived from the incorrect signing of the Will, rather than a clerical (typing) error.
At this point, therefore, the Will was effectively invalid and H had died intestate, in favour of the two natural sons.
The case went further to the Court of Appeal – again the same questions were addressed and decision of the Court was again to uphold the decision of the lower court.
Once again, the appellant appealed; this time, the case progressing to the Supreme Court. Here, though, a very different interpretation of the law was taken by the judges, on a majority though not unanimous decision. An analogy was made between the application of contract law, where in order to determine the validity of the contract, if the wording is not clear then the court can look at the intention of the contract.
Without entering into a long convoluted justification of the judge’s decision, it appears that there is now a very different departure from the previously narrow meaning of ‘clerical error’, and can now be widened to examine what the intention of the Will – even though not contractual in nature – was. It was very clear that when W signed H’s Will she mistakenly thought she was signing her Will, and vice versa. It was therefore equally clear they both intended to sign their own respective Wills, and the importance of this decision is therefore that the provisions of H’s Will was allowed to stand, EVEN THOUGH he did not sign his own will and it was his wife who signed his Will.
By way of commentary, it was obvious that the lower courts felt bound to apply the literal or narrow interpretation as to whether those courts were allowed to rectify the Will. It’s equally clear that the Supreme Court was frustrated at being bound by such an interpretation, and by creative application of other law the judges were able to bring about the ‘fair and just’ result: the intention of the testators when they wrote their Wills.
This judgment is important in that it creates a precedent for future cases, where a court has difficulty in striking out a clear error or an unforeseen result. However, it should not be viewed as a ‘get out of jail’ card for incorrectly attested Wills – it’s sobering to learn that the legal costs of going up the court ladder ultimately to the Supreme Court necessary to give the right result were astronomical, and the result was something of a pyrrhic victory for the ultimate beneficiary: his inheritance was effectively swallowed up in legal fees.
So, the learnings – it is absolutely vital to ensure that the client has signed his or her own Will and that it has been signed correctly.
However, if you have any concerns regarding your estate, as a Will writer in Bexhill-on-Sea, I’ll be happy to offer you a FREE CONSULTATION NO OBLIGATION in your home, if you live in Bexhill, Hastings, Battle, Rye or anywhere in Sussex & Kent.
This message was added on Wednesday 7th May 2014
