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A mirror will that is mistakenly executed by the testator's
spouse will not be retrospectively rectified following the decision
in Marley v Rawlings (2011 EWHC 161 Ch).
Mr and Mrs Rawlings had identical wills prepared by their
solicitor in which each left everything to the other. On the death
of the survivor, the wills provided for everything to pass to Terry
Marley, who they had treated as their son. However, an error in the
execution of the wills whereby Mr and Mrs Rawlings each signed the
will of the other spouse, was not picked up at the time and
resulted in the combined estate passing to their two natural sons,
under the intestacy rules. Mr and Mrs Rawlings had not mentioned
their two natural sons in the wills and clearly did not intend them
to benefit.
Mr Marley brought an action to challenge the outcome on two
grounds. One was that the wills were properly executed in
accordance with s.9 of the Wills Act 1837, insofar as the testator
intended his signature to give effect to the will he signed.
However, Mrs Justice Proudman rejected this argument stating that
if asked whether he had intended this he would have responded
'no, of course not, that is my wife's will'.
The second ground for the challenge was based on s.20 of the
Administration of Justice Act 1982. This section allows the Court
to rectify mistakes in wills and Mr Marley's solicitor argued
that the Court should use the power conferred by this section to
rectify the mistake in this case.
However, this argument was rejected on the basis that the
section only applies if the mistake was either a clerical error or
a failure to understand the testator's instructions.
Mrs Justice Proudman stated that s.20 cannot 'extend to
something beyond the wording of the will'. In the current case
there was no error in drafting and as such s.20 could not apply and
the Court refused to rectify the will.
Mr Marley intends to bring an action for negligence against the
solicitor responsible for the mistake.
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A legal services order may be worded so as to provide that it will be for a specified period of time or for the purposes of a specified part of the proceedings.
The case of Hawes v Burgess and another [2013] EWCA Civ 74 is recent Court of Appeal decision reminding Probate practitioners of what steps must be taken to ensure that Wills they draft are upheld.
A well-meaning friend, relative or even a carer of a deceased person may take what they believe are helpful steps to tidy up a deceased’s affairs in the days following their death to pave the way for those who will carry out the administration of the estate.
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