Court refuses to rectify mirror will signed by wrong
spouse
14 February 2011
A mirror will mistakenly executed by the
testator's spouse cannot be retrospectively rectified, the England
& Wales High Court has ruled.
The testators in the case (Marley v Rawlings
2011 EWHC 161 Ch) were an elderly married couple, Mr. and Mrs
Alfred Rawlings. In 1999 they instructed their family solicitor to
prepare simple mirror wills leaving everything to one another. In
the event of their death it was to go to their adopted son Terry
Marley, who was also a joint tenant of the family home.
Although the solicitor and his secretary went
to the Rawlings' home to supervise and witness the execution of the
wills, the testators both managed to sign the wrong wills without
anybody noticing. The error was not spotted until the second death,
that of Mr. Rawlings, seven years later.
Mr. Rawlings' will was thus on the face of it
invalid. As a result, the Rawlings' combined estate did not pass to
their intended beneficiary, Terry Marley. Instead, under the
intestacy rules, it would pass to the couple's two natural sons,
who had not been not mentioned in the mirror wills.
Terry Marley brought the High Court action to
challenge this clearly unintended outcome. He put forward two
grounds.
One was that the wills had in fact been
properly executed within the meaning of s.9 of the 1837 Act, which
requires that a testator "intended by his signature to give effect
to the will" which he or she had signed.
The court ruled out that attempt, citing the
cases of Hunt (1875) and Meyer (1908), while rejecting subsequent
case law from other jurisdictions.
Marley's second string was an application to
have the mistake rectified under s.20 of the Administration of
Justice Act 1982. However, that section can only be invoked if the
mistake was either a clerical error or a failure to understand the
testator's instructions. The High Court decided it was neither, and
refused to rectify the will.
Marley now intends to bring a negligence suit
against the family solicitor responsible.
Sources
BAILII