We recently wrote about the case of Martin Lavin whose hand was apparently 'guided' into signing his Will by his sister, Anne. In that case Mr Lavin's Will was found to be invalid because the Court held that, in fact, Anne had signed the Will on Mr Lavin's behalf and had not guided his hand at all. Following the Lavin decision, a recent case has shown how the Courts might react to the improper execution of a Will where the testator makes a mistake.
In Marley v Rawlings Mr and Mrs Rawlings made mirror Wills in 1999 leaving their estates to each other, and on the second death to Terry Marley, who was treated as their adopted son. By doing this, one assumes that Mr and Mrs Rawlings intended to disinherit their two biological sons, Terry Rawlings an acclaimed biographer of rock stars - and his brother Michael. Mrs Rawlings died first in 2003. On Mr Rawlings' death in 2006, Terry and Michael Rawlings noticed that their father had signed their mother's Will, and vice versa, and argued that the Wills were therefore invalid. To make the matter worse, Mr and Mrs Rawlings had signed their Wills in the presence of their solicitor who should have picked up on the mistake.
Mr Marley applied to Court for Mr Rawlings' Will to be rectified, as he argued that it was clearly the intention of the couple to leave their estates to him. Unfortunately for Mr Marley, the Court of Appeal disagreed, and Mr and Mrs Rawlings' estates passed to their estranged sons under the intestacy rules. The Court expressed regret that they could not rectify the Wills but made the reasoned decision that because the Wills were not, in fact, Wills within the definition of the Wills Act 1837 (''the Act'') they could not be rectified. Accordingly, the Court's hands were tied.
This case shows the importance of adhering to the strict execution criteria as set out by the Act. From a legal perspective, the Court's decision was undoubtedly correct, however some may regard the decision as unfair because of the Court's refusal to give effect to what were quite clearly Mr and Mrs Rawlings' wishes.
There will be some debate amongst practitioners as to whether the government should review the Act which was, after all, made 175 years ago to allow the testator's wishes to be the overriding consideration in deciding cases such as these. What is certain is that given the increasing popularity of ''DIY'' Will kits, cases like these will become more common.