The Supreme Court has allowed rectification of mirror wills in the case of Marley v Rawlings  UKSC 2, where a couple had signed each other's wills by mistake.
In 1999 Mr and Mrs Rawlings instructed a solicitor to prepare mirror wills. Each spouse left his or her estate to the other and upon the death of the surviving spouse to their informally adopted son, Mr Marley. Their two biological sons were disinherited. Due to an oversight by the solicitor, Mr and Mrs Rawlings each signed the will meant for the other.
Mrs Rawlings died in 2003. The mistake was not noticed until Mr Rawlings died in 2006.
Mr and Mrs Rawlings' sons challenged Mr Rawlings' will on the basis that it was invalid as it was not signed by him. If the will was invalid, Mr Rawlings would have died intestate and his sons would inherit his Estate. If the will was valid, Mr Marley would inherit the Estate. Mr Marley commenced probate proceedings.
The solicitor who drafted the wills admitted that he had accidentally given the wrong will to each spouse to sign. At first instance the claim was dismissed on the grounds that the will did not satisfy Section 9 of the Wills Act 1837 (in that the will was not signed by the testator) and, even if the will had been signed by Mr Rawlings, the Court was unable to rectify the will under Section 20 of the Administration of Justice Act 1982 (as the mistake was not a clerical error). The Court of Appeal upheld the decision on the first ground and hence did not consider the second.
The Supreme Court allowed the appeal by Mr Marley and held that the will should be rectified so that it contained the typed parts of the will signed by Mrs Rawlings.
The Court considered the approach in commercial contracts, where the court is concerned to identify the intention of the contracting parties, and considered that the approach to wills should be the same. Further, the Court considered that section 21 of the 1982 Act (which allows for extrinsic evidence to be used to assist with the interpretation of a will) supported this view and therefore a will should be interpreted in the same way as any other document. In addition it was also possible to refer to evidence of the testator's intentions.
The Court referred to circumstances where a solicitor inserts the wrong word, figure or name into a clause in a will. That would be a clerical error which could be rectified under section 20 of the 1982 Act. The Court considered the outcome should be no different where the mistake is the insertion of a wrong clause, provided the testator's intentions were clear. The Court held that whilst the expression "clerical error" can have a narrow meaning it could carry a wider meaning to include a mistake arising out of office work such as preparing, filing, sending and organising the execution of a document. A mistake in connection with these activities could be "a clerical error" and hence a will could be rectified.
This decision may be welcomed by probate solicitors as it broadens the types of mistake for which rectification will be successful. The Supreme Court adopted a commercial and common sense approach, emphasising the importance of the testator's intentions. The concept of a "clerical error", which was previously predominantly confined to typing errors, has been allowed a wider meaning.
However, this more flexible approach is likely to result in increased litigation in this area as disappointed beneficiaries test the boundaries of the courts' pragmatism. Some commentators are warning that the decision could open the floodgates to a raft of similar cases. Solicitors and their insurers will be awaiting further developments with interest.
The Society of Trust and Estate Practitioners has recently published a code for will preparation in England and Wales for its members which will be in force from 1 April 2014.