Intestacy

Mirror wills

Marley v T & M Rawlings [2001] EWHC 161 (Ch), [2011] All ER (D) 43 (Feb); NLJ 11 March p356

Mr & Mrs Rawlings made mirror wills bequeathing their estates to each other, and on the survivor’s death to their adopted son, who was a joint tenant of the family home. Their solicitor took the precaution of attending at their home with his secretary to supervise and witness the execution of the wills. Unfortunately they signed each other’s! The error only emerged after Mr Rawlings’ death. As a consequence the estate passed to the Rawlings’ natural sons and not to their adopted son, who challenged the unintended outcome. The Wills Act 1837 provided a complete answer to his claim. Under s9 ‘no will shall be valid unless (a) It is in writing, and signed by the testator…; and (b) It appears that the testator intended by his signature to give effect to the will.’ In the present case the testator did not intend by his signature to give effect to the will which he signed. Under s20 of the Administration of Justice Act 1982 a will can be rectified on the ground of ‘clerical error’ but although the definition of clerical error has a wide meaning it cannot extend to something beyond the wording of the will which is sort to be rectified. There was no error of drafting; simply the wrong will was tendered for signature. The judgment concluded: ‘I can only echo Sir James Hannen (in The Goods of Hunt) [1875] LR 3 P&D 250) and say: “That much as I regret the blunder, I cannot repair it”.’