Clerical errors in wills - have the floodgates been opened?

22 April 2014

There has been considerable coverage in legal press regarding the decision in and the effects of Marley -v- Rawling, in which the Supreme Court determined that mirror wills mistakenly signed by the wrong testator should nonetheless be deemed valid.

There has been considerable coverage in legal press regarding the decision in and the effects of Marley -v- Rawling, in which the Supreme Court determined that mirror wills mistakenly signed by the wrong testator should nonetheless be deemed valid.  The reaction is that this could open "floodgates" for claims against estates where there is a question as to the intentions of the testator and whether these have been accurately reflected in his or her will.

Concerns as to a flood of new cases are doubtless an overreaction.  It has long been the case that wills can be rectified in the case of a clerical error.  The Supreme Court has, in Marley -v- Rawling, taken careful consideration of and put into effect the intention of the testators, but this is confined to a very obvious case of clerical error, when each testator was passed the wrong will to sign.  Concerns that this will lead to a landslide of cases brought for rectification of a will where there is an allegation that it does not reflect the intentions of the testator are therefore overstated.

This said, the broader approach taken by the Supreme Court to the question of rectification of wills can be seen in a broader context of increasing flexibility available to courts in determining probate disputes.  I have no doubt that this is part of continued efforts by courts to impose fair and reasonable outcomes in such cases, which date as far back at least as the Inheritance (Provision for Family & Dependants) Act 1975.  The outcome of Marley -v- Rawling represents to me a further broadening of this approach.


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