If a mistake has been made in a Will, then an application can be made to the Court to rectify a Will under the Administration of Justice Act 1982. If the Court is satisfied that the mistake has been made because of a misunderstanding of instructions or a clerical error, then the Will can be rectified.
Case Study: Marley v Rawlings
In the case of Marley v Rawlings, Mr & Mrs Rawlings had both made identical Wills but had accidentally signed each other’s due to an error made by the solicitor. They had both left their estates to a Mr Marley who was not related to them. When Mr Rawlings died, his sons tried to argue that the Will was invalid as it had been signed by the wrong person.
Section 9 of the Wills Act 1837 sets out that in order for a Will to be valid it must be:
- in writing;
- signed by the testator (the person making it) or on their behalf at the testator’s direction and in their presence; and
- the testator’s signature must then be witnessed (physically and mentally present) by two independent witnesses.
During the current pandemic, the legislation has been extended to allow ‘virtual’ Will signings in very specific circumstances, but the main points still stand.
Initially, the first decision of the court was that the court did not have power to rectify a Will, even though there was no doubt that Mr Rawlings had wanted Mr Marley to inherit his estate.
However, this result was appealed and Lord Neuberger took a common sense approach and 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.’
He said: ‘I would therefore allow this appeal, and hold that the Will should be rectified so that it contains the typed parts of the Will, signed by the late Mr Rawlings, in place of the typed parts of the Will signed by Mrs Rawlings.’
Previously, rectification was only allowed for clerical errors which extended only to typographical errors, but this case now widens the meaning.
Although rectification has been allowed in this specific case for signing the wrong Will, this is an exceptional case and does not mean that the Courts can second guess the wishes of those who had intended to make a Will, but never got round to doing it.