In recent times there have been a number of Australian cases
regarding the validity of mirror wills made by a husband and a wife
in circumstances where each has inadvertently signed the
In Australia, there has been some confusion as to the proper
method for overcoming this problem. One approach taken by the
courts has been to admit to probate the document signed by a
deceased person even though the body of that document contemplates
that it is a will made by another person. That will, when admitted
to probate, can be rectified by the court under Part XII of the
Wills Act "to carry out the intentions of a deceased testator
(where) the court is satisfied that the will does not carry out the
testator's intention because –
a clerical error was made; or
the will does not give effect to the testator's
The alternate approach was to admit to probate, under Part X of
the Wills Act, the will prepared for the deceased but which was not
signed by him. Part X provides that where a will does not satisfy
all of the formal requirements, such as being signed by the
deceased, it may still be admitted to probate if the court is
satisfied that the deceased intended the document to constitute his
All the relevant Australian decisions were made by single
It may be that the confusion has been resolved by the decision
of the Supreme Court of England in the case of Marley v Rawlings.
The Supreme Court is the highest judicial body in England. In that
case Mr Rawlings signed the will meant for Mrs Rawlings and vice
versa. By his will Mr Rawlings left his whole estate to his stepson
and nothing to his natural children.
The trial judge and the Court of Appeal found that there was no
document that constituted a will which could be admitted to probate
and as there was no will, there was no document that could be
rectified by the court to give effect to the testator's
intentions. As a result, the lower courts found that the whole
estate passed to the deceased's children under intestacy, even
though it was clear that this was not the deceased's
The Supreme Court, however, found that the document signed by Mr
Rawlings was intended by him to be his will and that it satisfied
the formal requirements of a Will as to signing and witnessing etc
even though the contents of the will had no relevance to Mr
It found that the error in signing the wrong wills fell within
the term "clerical error" and was capable of
rectification under the English equivalent of Part XII and as a
result the stepson was entitled to the whole of the estate. The
children got nothing.
The common law position was that a court had no jurisdiction to
rectify a will but this was remedied in Western Australia in 2007
by the inclusion of Part XII into the Wills Act which now expressly
allows for the rectification of a will.
The decision of the Supreme Court produced a fair result and
avoided an injustice being done to the stepchild. It would appear
that the English court was forced into its decision because there
was no English equivalent of Part X of the Wills Act.
The English decision is not binding on Australian courts and it
remains to be seen whether the Australian courts will follow
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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