Alexander Learmonth investigates an unusual case of two wills being signed & executed by the wrong testators
The recent decision in Marley v Rawlings [2011] EWHC 161 (Ch), [2011] All ER (D) 43 (Feb), raised an interesting point of principle: could the power to rectify a will under s 20 of the Administration of Justice Act 1982 (AJA 1982) be used to cure a defect of execution of a will? Could such an error be categorised as a “clerical error”?
The facts are simple but, one hopes, unusual. Mr and Mrs Rawlings wished to make mirror wills, each leaving everything to the other, and the survivor leaving everything to their carer, and quasi-adopted son Mr Marley. But when the solicitor supervised the execution of these wills, he handed Mr Rawlings the will intended for Mrs Rawlings and vice-versa, and each signed and executed the wrong will. Neither the solicitor nor his secretary witnessing the execution spotted the error, and it was not picked up on the death of Mrs Rawlings, whose property passed
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