In a recent case Marley v Rawlings the facts were Mr and Mrs Rawlings each left the other their entire estate but if the spouse failed to survive the whole estate was left to Terry Marley who was treated as their adopted son.
The Rawlings had 2 natural children but were not close to them and their intention was to benefit Mr Terry Marley alone on the death of the survivor.
Their house was vested in their 3 names as beneficial joint tenants and the rest od the estate came to about £70000 net.
The solicitor who had prepared the Wills visited Mr and Mrs Rawlings at their home with his secretary for the purpose of signing the two Wills.
By mistake Mr Rawlings executed Mrs Rawlings Will and vice versa.Both signatures were witnessed by the secretary and the solicitor and no-one noticed the error.The mistake was not picked up on the death of Mrs Rawlings in January 2003.Presumably all the assets were jointly owned so that it was unnecessary to obtain a Grant of Probate.
It did not come to light until Mr Rawlings died in 2006.
If the Will was invalid the estate would pass on intestacy to the 2 natural sons of Mr Rawlings.The report makes it clear that Mr Marley will hold the solicitor responsible for the error.
The Court held that the Will could not be omitted to Probate because the requirements of the Wills Act section 9 had not been met.This section provides that no Will shall be valid unless it appears that that the testator intended by his signature to give effect to the Will.
In the Judge’s opinion Mr Rawlings did not intend his signature to give effect to the Will he signed.
The Will was therefore invalid.
In case the Judge was wrong on that point she went on to consider whether the Court had the power to rectify the will under the Administration of Justice act 1982 section 20 and decided that it did not.
Section 20 allows a Court to rectify a Will only if it is satisfied that the Will fails to carry out the testator’s intentions,in consequence of a clerical error, or a failure to understand his instructions. The meaning of clerical error is wider than mere errors in transcription. In the present case there was no error of drafting whether by inclusion or by omission or by miscasting of words.
The Wills were both correctly expressed ,the error was simply that the wrong Will was signed. It was as if the solicitor had pulled a Will prepared for a totally unconnected testator out of his briefcase and that one had been signed by mistake.
Rectification was not available.
The case is a reminder of the care that a solicitor needs to take if overseeing execution. Where a solicitor does not oversee execution if the Will is to be returned to the firm for safe keeping there is a duty to check that, on its face, and on the facts then known to them its execution was ostensibly valid.
