A Literal or Liberal interpretation of the Wills Act 1837?

After a legal battle spanning nearly a decade, common sense finally prevailed this week.Five Justices of the Supreme Court ruled that a Will containing a very basic ‘clerical error’ should be rectified.Mr Marley had been treated as a son of Mr and Mrs Rawlings since his teens, but had never been formally adopted. Mr & Mrs Rawlings had made relatively simple ‘mirror’ Wills in 1999.  The Wills were essentially in exactly the same terms and provided that the estate would pass to the survivor of the two of them, failing which everything would pass to Mr Marley.  Unfortunately due a clerical error Mr and Mrs Rawlings were each handed the other’s Will to sign, and inadvertently signed each others Will and not their own.  Nobody noticed the mistake at the time and they assumed everything was in order.Mrs Rawlings passed away in 2003 but the mistake only came to light when Mr Rawlings died in 2006. Their two birth sons launched a legal challenge against the validity of their father’s Will; the result, if successful, being that Mr Rawlings would have effectively died intestate and his whole estate would pass equally to his natural sons and Mr Marley would stand to inherit nothing.As the law stands in order to comply with the terms of the Wills Act 1837 a Will must be signed by the person making it – the testator. A literal interpretation upheld by both the High Court and the Court of Appeal.The Supreme Court however disagreed.The intention of Mr and Mrs Rawlings remained the same; the only difference between their Wills was their name. Lord Neuberger, President of the Supreme Court, leading the judgment, made it abundantly clear that a testator’s wishes should be carried out in so far as the letter of the law would allow:‘Today’s judgment is important because the concept of clerical error has now been given a wider meaning by the Supreme Court. To date, it was thought only typing errors could be fixed. This has now been extended to include mistakes arising from office work of a routine nature such as preparing, filing, sending, and organising the actual execution of a will’For over 40 years contract law has been generous in allowing unforeseen errors in contracts to be rectified, and now it would seem this liberal approach applies to wills also. Nicola Mitchell-RoddContentious Probate TeamTel: 01752 292278Email: nmitchell-rodd@wolferstans.com

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