Wills in the news: Application of common sense or an opening of the flood gates to uncertainty and litigation?
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Wills in the news: Application of common sense or an opening of the flood gates to uncertainty and litigation?
| Philip Moore Class of 2016 |
Traditionally, in order to be valid, a will must comply with the fundamental requirements set out in section 9 of the Wills Act 1837; specifically it must:
a. be in writing;
b. be signed by the testator;
c. appear that the testator intended his signature to give effect to the will;
d. be witnessed in the correct manner.
The background to Marley v. Rawlings is as follows:
- In May 1999, Mr Rawlings and Mrs Rawlings, husband and wife, decided to execute mirror wills leaving their entire estates to each other.
- The wills were also to provide that if the testator's spouse predeceased them, the testator's estate would instead pass to Mr Terry Marley (who had been treated as the couple's adopted son), thereby excluding the couple's two biological sons.
- When arranging for the wills to be executed the solicitor acting for Mr and Mrs Rawlings accidently gave the spouses the incorrect wills and, unbeknown to the couple at the time, they signed each other's wills.
- The mistake remained unnoticed when Mrs Rawlings dies in 2003 and her husband received her estate.
- In 2006, after the death of their father, Mr Rawlings' sons realised the mistake, and after revealing the error, received the estate under the statutory rules of intestacy (which govern the distribution of an estate where the deceased did not leave a valid will).
- Mr Terry challenged the invalidity of Mr Rawlings' will, and eventually, the case was heard by the Supreme Court.
Previously "clerical errors" was limited to instances of typing errors; however the ruling in Marley v. Rawlings established a much wider interpretation. While the interpretation allows the courts to investigate the context in which a will was signed and seeks to ensure an estate is distributed in accordance with the testator's original intentions, there is a danger this could open the flood gates for applications relating to wills which, allegedly, do not reflect the intentions of a testator.
While the court’s power of rectification has been extended, it does not simply allow for all mistakes to be undone, and therefore it remains of paramount importance to ensure wills are prepared diligently and in compliance with current statute and case law guidance.
Many believe the ruling applied a common sense approach to the circumstances and ultimately achieved the testator's original intentions. However, despite this arguably successful final result, the acrimonious process of getting a determination from the court would have undoubtedly incurred significant expense and placed emotional strain on all parties involved.
As a result of the ruling in Marley v. Rawlings, and the court's apparent willingness to revise longstanding principlesrelating to the validity of wills, there will inevitably be an increase in applications for rectification by those seeking to test the boundaries of the court's readiness to give effect to the testator's original intentions. Such applications are likely to draw comparisons to the principles that apply to interpreting contractual agreements and certainly provide scope for extensive legal debate and potential for a further expansion of the court's powers.
Silverman Sherliker’s Private Client department provides specialist advice relating to wills, probate, probate disputes, inheritance planning and powers of attorney. For advice, please call +44 (0)20 7749 2700 and ask for Partner Gareth Hughes (gh@silvermansherliker.co.uk) or any member of the Private Client department.
Philip Moore is a junior McConnell Scholar from Louisville, Ky. He is studying political science, economics, international business and Spanish.