It is common knowledge that a will has to be signed by the person making it (and most people would probably be quite shocked if that were not the case, given the importance of the document).  However, the case of Marley v Rawlings, decided in the Supreme Court last week, casts doubt on whether this always has to be the case.

Mr and Mrs Rawlings made mirror wills - leaving everything to each other and then to Terry Marley who was not related to them, but who they treated like a son.  They had two other sons.  Unfortunately, when they signed their wills, they were given the wrong ones, so Mr Rawlings signed Mrs Rawlings' will and vice versa.  It appears to have been a simple error of the solicitor asking them to sign.

On Mrs Rawlings' death, rather surprisingly, no-one noticed the error.  Had they done, then Mr Rawlings may have executed a new will and the matter would have gone no further.  However, her estate was administered and passed to Mr Rawlings without incident.

When Mr Rawlings died, the mistake was discovered and the Rawlings' two sons argued that their father had therefore died intestate.  Under the intestacy rules this would have meant that the estate would have passed to them.  However, Mr Marley argued that the mix up regarding signatures was simply a clerical error and the will should therefore be 'rectified' to put Mr Rawlings' wishes into effect.

Cases regarding rectification are unusual.  They usually only arise where there is an obvious error such as 'I wish to leave one thousand pounds (£10,000) to X' where the additional 0 is a clear mistake.  In this case, there was a more fundamental problem - the lack of the correct signature on the will meant that technically there was no will to rectify.  The Wills Act 1837 is clear that wills have to be signed by the person making them, and this is a fundamental and well understood requirement.

The High Court and Court of Appeal therefore refused to rectify the will.  However, the Supreme Court has agreed that it should be rectified, allowing Mr Marley to inherit the estate. The judges felt that the Court’s aim is to identify the writer’s intentions by considering the words he has used in all of their contexts, and put those intentions into effect.  Like a commercial contract, this means that will can be rectified by the Court in order to give effect to the testator's wishes.

This was fortunate for Mr Marley, and has been described by some commentators as a victory for common sense.  Mr Rawlings' wishes were clear after all.  However, there is some concern about how far this judgment has stretched the concept of rectification - if a will does not actually have to be signed by the person making it, then how many other 'mistakes' will be able to be cured by the Courts? The answer is likely to involve a lot of further litigation whilst the Courts work out the answer - particularly because this is an area of law where emotions are often running high, and people are prepared to fight.