Wills held valid despite defective execution
Section 9 of The Wills Act 1837 sets out the requirements for the valid execution of a Will. The requirements are:
(a) in writing, signed by the testator or some other person in his presence and by his direction.
(b) it appears that the testator intended by his signature to give effect to the Will.
(c) the testator’s signature is witnessed by two or more witnesses.
These are very clear and unequivocal requirements that apply in every case. It would therefore seem strange to hold a Will to be valid when these very clear requirements were not complied with, but, that is exactly what the Supreme Court has done.
Maureen and Alfred Rawlings had Wills drafted in 1999, leaving all their property to Terry Michael Marley who was not a blood relation of the couple. On Alfred’s death it came to light that that he and his wife had actually signed each other’s Wills i.e. he signed hers and she signed his. Strictly speaking, according to the Wills Act 1837, the strict formalities for execution were not complied with and should, technically, have invalidated the Wills.
Mr Rawlings’ two disinherited sons claimed the Will was invalid because of this error, presumably because they would then inherit the estate under the intestacy provisions. Lord Neuberger rejected this claim and held the Will to be valid notwithstanding the error in execution. He cited principles of contract law and the notion that the intention of the parties should be the important consideration in cases such as this. He therefore allowed the Will to be rectified to impart the typed parts of the Will signed by Mrs Rawlings i.e. what was actually meant to be the typed part if Mr Rawlings’ Will in the first place. This meant the sons continued to be disinherited from the estate.
This is an interesting case because it departs from very clear formalities and extends the meaning of ‘clerical error’ in cases such as this which has often been construed narrowly to typing errors only. The decision is a supremely sensible one and it was very clear that both Mr and Mrs Rawlings wanted Mr Marley to inherit, to decide any other way would not have upheld the intention of the testator. However, this case is likely to only be of relevance in mirror Will cases where the Wills are substantially the same and this situation is only likely to occur in cases of mirror Wills and instructions from Mr and Mrs.
A decision in the alternative would have ultimately resulted in a claim in negligence by Mr Marley against the solicitor draftsman. Looks like the Supreme Court saved that solicitor a few quid. We would however strongly recommend signing the Will in accordance with the Wills Act formalities!
