Archive for October, 2011

Retrospective Rectification of Mistakenly Executed Wills

Monday, October 31st, 2011

The case of Marley v Rawlings has provided a cautionary reminder of the limits to which the principle of rectification can be used to correct errors in a Will.

The case considered the circumstances in which the court will rectify a Will under s.20 of the Administration of Justice Act 1982.

The case related to testators, Mr and Mrs Rawlings, who mistakenly signed each others mirror Will. The mistake was not identified until the death of the second testator and the Will was pronounced prima facie invalid.

As a result, the estate did not pass to their intended beneficiary, their unofficial adopted son Mr Marley, but instead passed under intestacy rules to their natural sons, who had not been mentioned in the Wills.

Mr Marley challenged the intended intestacy, firstly contending that the Wills had been properly executed under s.9 of the Wills Act 1837 – namely that the testator “intended by his signature to give effect to the Will” and secondly, that the mistake should be rectified under s.20 of the Administration of Justice Act 1982.

The High Court refused rectification and in particular commented that:

  • S.20 of the Administration of Justice Act 1982 can only be invoked if the mistake is either a clerical error or a failure to understand the testator’s instructions. In this case, the error could not be categorised as a ‘clerical error.’
  • Rectification under s.20 could not extend to something beyond the wording of the Will.
  • The Will that Mr Rawlings had signed (Mrs Rawling’s Will) could not be admitted to probate because it was not executed in accordance with s.9 Wills Act 1837. Mr Rawlings did not intend by his signature to give effect to that Will.

Judgement has been reserved by the Appeal Court to a later date. 

What this means for you >

Where a Will is contested, rectification is only available for clerical errors, even where the error in signing the Will is obvious and the intention of the testators is clear.

The case highlights the limit of the court’s power to rectify Wills and the importance of ensuring that Wills are properly executed in accordance with the standard formalities. Always make sure that you understand the Will and read the contents before signing or executing correctly.