"Its a good thing to learn caution from the misfortune of others" - Publilius Syrus.  

The recent Court of Appeal decision in Marley v Rawlings is one that all concerned with will writing and probate matters should take heed of. The case reiterates that regardless of how clearly the deceased's intentions are evidenced, the Court cannot interfere with the longestablished rules on the requirements surrounding the execution of wills.  

Section 9 of the Wills Act 1837 sets out the requirements for formal validity of wills:  

  • It must be in writing and the testator must sign it or another person must sign it in his presence and at his direction.
  • It must appear that the testator intended by his signature to give effect to the will.
  • The signature must either be made or acknowledged in the presence of at least two witnesses present at the same time.
  • Each witness must sign the will or acknowledge his signature in the presence of the testator.  

In the case of Marley, Mr and Mrs Rawlings made mirror wills but each signed the will prepared in the name of the other. The error did not come to light until the second death, that of Mr Rawlings. The Court held that the will executed by Mr Rawlings could not be admitted to probate because it did not comply with Section 9 of the 1837 Act - not only had Mr Rawlings not signed his own will but more importantly, he had not intended to give effect to the will that he had signed.  

The will was held to be invalid and as a result, the Court further held that the will could not be rectified under section 20 of the Administration of Justice Act 1982 as there was no clerical error or failure to understand Mr Rawlings' intentions. Accordingly, the estate passed to Mr and Mrs Rawlings' children under the intestacy rules rather than to their adopted son, Mr Marley, as stated in the wills.  

There are salutary lessons to be learnt from the unfortunate events of Marley:  

  • Even if the court is wholly satisfied that the testator intended to make a will in a particular form, if the requirements of section 9 of the 1837 Act are not exactly complied with, then the will must be struck down as invalid.
  • Reference to "clerical error" under section 20 Administration of Justice Act 1982 does not extend to something beyond the wording of the will for which rectification was sought. In other words, there is a difference in kind between a testator executing his own will that contained errors or a carbon copy of his own will and executing another person's will, however similar the two wills might be.
  • The English Courts, unlike the courts of some other common law jurisdiction, do not have the power to admit to probate a mirror will signed by the wrong spouse.  

The importance of adhering to strict execution and validity criteria for wills cannot be emphasised enough. Even if you are not a will writer or legal practitioner but are a professional executor or trustee, for instance, it is good practice to check that a will is valid. In the case at hand, the mirror wills were made in 1999. Mrs Rawlins died in 2003 but the mistake remained unnoticed until Mr Rawlins passed away in 2006. Had the error been spotted earlier, then new wills could have been made.  

The moral of the story? There is no excuse for mistakes in the execution of a will - check, check and check again that a will has been validly executed.