The England & Wales Court of Appeal has confirmed that mirror wills executed by an elderly couple are void because each spouse accidentally signed the other's will.
The EWCA ruling, in the case Marley v Rawlings [2012 EWCA Civ 61], was made reluctantly because the couple, Mr. & Mrs Alfred Rawlings, had clearly intended the wills to take effect. Both wills gave each spouse's estate to the other spouse at the first death, and at the second death to their adopted son Terry Marley.
The wills were prepared by the couple's solicitor and executed in his presence in 1999. But neither the solicitor nor the other witness (his secretary) noticed that the wrong wills had been signed.
Mrs Rawlings died in 2003, but it appears the mistake was not noticed then, probably because all the couple's property was held jointly and so passed by survivorship without the need for probate. However, it was noticed on Mr. Rawlings' death in 2006. The couple's two natural sons pointed out that the wills were on the face of it improperly executed, and that therefore they had died intestate. The consequence would be that the two Rawlings sons would inherit the part of the estate governed by the intestacy laws, amounting to GBP70,000.
The Rawlings sons thus contested probate of the mutual wills. Terry Marley then asked the England & Wales High Court to rectify the wills, claiming that the law (Wills Act 1837 s.9 as amended by the Wills Act Amendment Act 1852 and by the the Administration of Justice Act 1982) only required that "the testamentary document is in writing and signed in such a way that it is apparent that the testator intended by his signature to give effect to it as a will".However, in February 2011, Proudman J in the EWHC declined to rectify the wills, noting that the error concerned was neither clerical nor a failure to understand the testator's instructions as required for rectification under the 1982 Act. And Alfred Rawlings, she said, could not have intended by his signature to give effect to the will he signed, because it was not his will.
Mr. Marley duly took the case to the Court of Appeal, which has now upheld the High Court's earlier ruling. Announcing the decision, Lady Justice Black said: "This is a conclusion I have reached with great regret, but Parliament made very limited changes to the law in 1982 and it would not be right for a court to go beyond what Parliament then decided."
Matthew Duncan TEP, private client partner at Kingsley Napley LLP, said theAppeal Court's ruling was disappointing and that the case called out for a "pragmatic decision".
Terry Marley's next recourse will probably be a claim in negligence against the as yet unidentified solicitor who not only supervised the execution of both wills but attested them as well.