Read before you sign!

The recent case of Marley v Rawlings [2012] EWCA Civ 61 demonstrates an important lesson about reading documents carefully before signing them.

In 1999 Mr. and Mrs. Rawlings attended their solicitor in order to sign their Wills. The Wills left everything to the survivor of them, and on the death of the survivor to their informally adopted son Terry Marley. Their 2 natural sons were excluded from benefit under the Wills.

Unfortunately Mr. and Mrs. Rawlings signed each other’s Wills – this was not noticed by the couple, the solicitor or the second witness. Mrs. Rawlings died in 2003 and again the mistake was not noticed. Mr. Rawlings died in 2007, the mistake noticed, and the validity of the Will was contested by his 2 natural sons. They argued that it did not comply with the legal formalities required for valid execution of a Will.

These formalities are set out in the Wills Act 1837 and in brief are:

  • That the Will is in writing and signed by the testator.
  • That it appears by their signature the testator intended to give effect to the Will.
  • The Will is signed in the presence of 2 witnesses who then sign/acknowledge their own names.

A later Act – the Administration of Justice Act 1982 – gives the Court power to rectify Wills where the drafting makes the testator’s wishes unclear and permits the introduction of extrinsic evidence to demonstrate the true intent. However it makes no comment on the rectification of Wills where it is the formalities for execution which are deficient.

The effect of this is that if Mr. Rawlings’ Will did not comply with the formalities then it would be invalid. In the absence of a previous Will, the rules of intestacy would apply and Mr. Rawlings’ 2 natural sons would inherit the entire estate to the exclusion of Mr. Marley.

While the Court acknowledged that Mr. and Mrs. Rawlings’ intention had clearly been to benefit Mr. Marley, it however felt strictly bound by the legislation and found the Will invalid – Mr. Rawlings’ Will did not comply with the prescribed formalities as it was not his Will. The Court felt unable to extend the 1982 legislation to cover defects in the formalities of executing Wills – this would be a job for future legislation.

There have been calls for reform; however in the meantime this is a clear reminder to us all to make sure that we read carefully through every document we sign. While there is no indication that the mistake in this case was spotted and not acted upon, it shows that any errors can make a fundamental difference to the way a document is treated and need to be addressed.

For further information or to arrange a FREE review of your existing Will, please contact Kathryn Caple on 01283 526230 or email kathryn.caple@elselaw.co.uk.

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