Mix up of Mirror Wills

The Supreme Court has ruled that a mix-up in signatures on mirror Wills should not be allowed to disinherit a couple’s intended heir. Disputed Wills would be interpreted using the same rules as those applicable to the interpretation of contracts, the Supreme Court has held in a case involving mirror Wills where the spouses signed the other’s Will instead of their own by mistake. In judgment in the case of Marley v Rawlings on 22 January, Lord Neuberger, the Supreme Court president, said that account should be taken of “surrounding circumstances” as evidence of the testator’s intentions and a Will rectified accordingly.

In this case the mistake should be regarded as a ‘clerical error’, which the court could rectify under the Administration of Justice Act 1982. The expression of ‘clerical error’ should be given a broad meaning beyond the insertion or omission of a word “as a result of a slip of the pen or mistyping”. “The term ‘clerical error’ can, as a matter of ordinary language, quite properly encompass the error involved in this case,” he found. “There was an error, and it can fairly be characterised as clerical because it arose in connection with office work of a routine nature.” As such, he concluded, the error was “susceptible of rectification”. Alfred and Maureen Rawlings had their Wills drawn up in 1999, ultimately leaving their estate to Terry Marley, who was not related but whom they had treated as their son. By an oversight, they had each been given and signed the Will made for the other, and both Wills had been witnessed. Mrs Rawlings died in 2003 and it was only after Mr Rawlings death three years later that the error came to light. The Rawlings’ son, who stood to inherit their parents’ estate worth 70,000, challenged the validity of Mr Rawling’s Will on the basis that it could not therefore have contained his intentions. The Supreme Court’s judgement establishes that, in matters where an error has led to a Will dispute, the guiding principle must be the clear intention of the deceased.

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