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A costly mistake continued...

View profile for Katie de Swarte
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In my last blog I introduced you to the case of Marley v Rawling, which involved an elderly couple, namely Mrs & Mrs Rawlings, who had two biological sons and one adopted son. In 1999 they instructed their solicitor to prepare a pair of identical 'mirror' wills. The wills left their entire estate to the other spouse if alive, and if not, to their adopted son, Terry Marley.

Upon Mr Rawlings death in 2003 her estate passed to her husband without problem. However, when Mr Rawlings died three years later both wills were examined and it transpired that Mr & Mrs Rawlings had accidentally signed the other's will without anyone noticing. Their solicitor has since admitted handing out the wrong wills.

This case has been heavily litigated. Mr Marley, the adopted son, lost two previous cases, including a judgment in the Court of Appeal, where it was found that although the Rawlings’ intentions were clear, their wills were invalid because the “testator” named in the will had not signed his or her name. He subsequently won permission to have his case heard by the Supreme Court.

Judgment was handed down in the Supreme Court in January 2014 overruling both the England & Wales Appeal Court and the High Court, finding unanimously in Mr Marley’s favour.

Lord Neuberger gave judgment and noted that the courts have discretion to correct errors in commercial contracts. He went on to say that wills are essentially similar to contracts and capable of re-interpretation so as to show what the testator intended. As with commercial contracts the aim is to identify the intention of the party or parties to the document, by looking at the words used in their documentary, factual and commercial context.

Lord Neuberger surmised that 'In this case Mr Rawlings had signed the will as his last will and testament intending it to be a formal will attested by two witnesses on the basis that it was indeed his will. The will did not therefore fall foul of s9 of the 1837 Act as amended. Moreover, he said, s20 of the 1982 Act provided that rectification of a will could take place if there had been a 'clerical error'.

Reversing the findings of the lower courts, Lord Neuberger went on to say that this expression was not limited to mistakes in copying or writing out a document, but could cover any kind of routine office work, including organising the execution of a document.

The wills were rectified and admitted to probate.

Katie de Swarte on katiedeswarte@childandchild.co.uk or 020 7201 3576, or;

Natasha McKeever on natashamckeever@childandchild.co.uk or 020 7201 3577

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