In a recent case Marley v Rawlings, Mr & Mrs Rawlings had made mirror wills but had accidentally signed each others. 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 for a will to be valid:
- A will 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
- The testator’s signature must then be witnessed (physically and mentally present) by two independent witnesses.
The High Court had previously said it was not in its power to change the will, even though there was no doubt that Mr Rawlings had wanted Mr Marley to inherit, however Lord Neuberger recently 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 Mrs Rawlings, in place of the typed parts of the will signed by Mr 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 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!
If you require advice on making or changing a will, please contact our wills and wealth planning team on 01625 442148.