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