Contested Wills - a reminder: Rectification is only available for 'clerical errors'

A recent High Court case is a cautionary reminder of the limits to which the principle of rectification can be used to remedy 'clerical errors' in a Will.

The fact behind the decision in Marley -v- Rawlings were that a husband and wife had prepared mirror Wills, but when it came to the signatures each spouse had mistakenly executed the Will of the other.  

This error went unnoticed on the death of the wife, and did not become apparent until after the death of the husband. Under the terms of the Wills the whole estate was to go to the couple's adoptive son with nothing for the other children of the deceased.  If the Wills were invalid the intestacy rules would apply and the two family members would have benefitted significantly.

The adoptive son therefore applied to Court for an order that the Will should be rectified under Section 20 of the Administrative of Justice Act 1982 as there was a 'clerical error' of drafting in a Will which should be rectified to give effect to the true intention of the deceased.  He asked the Court to rule that the Wills should be given effect as if executed by the correct parties.

The High Court looked at the requirements for making a will which provide that a testator must sign the will in the presence of witnesses to demonstrate that he intends to give effect to it. In this case it was not the intention of the husband and wife to give effect to each others' Wills by signing the wrong wills.  The High Court conclude that a 'clerical error' that could be rectified could not extend to something beyond the wording of the Will. As the Wills were drafted correctly, the wrong signature was not a clerical error which could be rectified under s.20 so the claim failed.

Comment

This decision may appear to be a harsh application of the rules as the intention of the husband and wife was clear and the error in signing the wrong document was equally obvious. However the reasoning employed in relation to the specific statutory provisions cannot be faulted.  The decision shows that the requirements for making a will contained in the Wills Act 1837 allow little scope for judicial discretion.

Some may argue that the case shows that there is a need for legislative reform. However others say that with the law as it stands the ultimate burden of rectification usually lies with the professionals who drafted the Wills, as a claim in negligence against the will drafters should provide the disappointed beneficiaries with an adequate remedy.  

Ashfords' Trusts and Estates team can assist on any matters regarding a will or trust. For taxation and estate planning advice please contact Rachael Crocker on 01884 203088. In the unfortunate event of a dispute in relation to a deceased person's estate or a trust please contact Robert Horsey on 01884 203086.

Ashfords LLP is regulated by the Solicitors Regulation Authority.  The information in this note is intended to be general information about English law only and not comprehensive.  It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.