Mirror Wills case fuels debate

At the end of January 2014, the Court of Appeal finally handed down its ruling in the case of Marley v Rawlings, an ongoing Wills and Probate case which has captured the attention of the legal world. The judgement will prove influential in future cases surrounding mirror Wills, as it confirmed that where couples sign the wrong Wills by mistake, those Wills are not valid and so cannot be rectified.

The facts

Mr and Mrs Rawlings made mirror Wills in 1999 which would leave their estates to each other. On the event of the second death the full estate would then pass to Terry Marley, who, although not related to the couple was treated as their adopted son. The Rawlings’ two biological sons – Terry Rawlings and his brother Michael were excluded from the estate.

However, when it came to the act of signing the Wills the couple mistakenly signed each others, rather than their own. The errors remained undetected for several years, and it was not until the death of Mr Rawlings in 2006 that they were eventually spotted. With their parents now deceased, the biological sons argued that the Wills were invalid and so the estate should not pass to Terry Marley.

Terry Marley argued that the couple wanted to leave everything to him and not their sons and took his case to the High Court for Mr Rawlings’ Will to be rectified. His case centred on section 20 Administration of Justice Act 1982, which states that a Will can be rectified if the mistake was either due to a clerical error or due to a failure to understand the testator’s instruction. However, the High Court confirmed that neither of those situations applied in this instance.

The case rumbled on for several years, and it was only when the Court of Appeal made its final ruling last month that the High Court’s decision was upheld. The Court of Appeal confirmed that, irrespective of the clear intentions of the deceased, the requirements for a valid Will are strict and under these circumstances the Wills were not valid.

As a result of the mix-up and incorrect signatures on the documents, Mr Marley lost any entitlement to the £70,000 estate left by the couple.

The reaction

Whilst agreeing that the decision was sensible, many legal practitioners have expressed concern that it could lead to more cases being brought to court under the concept of clerical error. Richard Roberts, chair of the Law Society’s Wills and Equity Committee said: ’There is a real danger that some practitioners might start waving the flag’.

This view is shared by Lesley King, professor at the University of Law, who agreed that the ruling could lead to more litigation. She argues that although the law states that a will has to be signed to be valid, the process of doing so can be flexible. "Because of this there is more opportunity to push the boundaries," she said.

James Lister, an associate at Charles Russell warns that the risk of the floodgates being opened as a result of clerical error is very real. He said: "We are likely to see more claims being brought in relation to seeking to uphold or amend wills which would not have previously been possible before today".