CONTENTIOUS PROBATE

A lesson in the rectification of wills following clerical error

A look back at the case of Mr & Mrs Rawlings, the first inheritance dispute case to reach the Supreme Court.

Sunday night saw the first episode in Channel 5’s new documentary series – Inheritance Wars: Who gets the money? The programme looks back at some of the leading inheritance disputes that have gone before the High Court and details the bitter disputes between families when a loved one dies.

Episode one centred around the first inheritance dispute to reach the Supreme Court, following the appeal of the two earlier decisions by the High Court and Court of Appeal. The case saw two brothers in dispute with an ‘adopted’ third brother about whether their parents’ wills could be rectified in circumstances where they incorrectly signed each other’s wills,  legally rendering them invalid.

Mr and Mrs Rawlings had two sons. In all but legal title, they later adopted one of their son’s friends who they treated as their own. Both biological sons left home and had families of their own, leaving the ‘adopted’ son at home with Mr and Mr Rawlings.

In later life Mr and Mrs Rawlings moved with the ‘adopted’ son to Kent and he became their carer. Mrs Rawlings subsequently died in 2003, with Mr Rawlings passing away three years later in 2006.

Unbeknownst to the sons, Mr and Mrs Rawlings had transferred their £400k family home to their ‘adopted’ son in 1999, which disinherited the biological sons and left everything to the ‘adopted’ son.

Section 9 of the Wills Act 1837 sets out very clearly the legal requirements for a valid will, namely:

  • That it be in writing, signed by the testator, or by some other person in his presence and by his direction
  • That the testator intended his signature to give effect to the will and
  • That the signature be made or acknowledged by the testator in the presence of two witnesses at the same time who also sign the will in the presence of the testator.

Those requirements were at the very heart of the bitter dispute that went all the way to the Supreme Court. Following their deaths, it became apparent that Mr and Mrs Rawlings, when making their wills, had signed each other’s and not their own. Therefore, those wills did not meet the requirements of a valid will.

The Administration of Justice Act 1982 allows a will to be rectified where a clerical error or misunderstanding by the will drafter leads to the testator’s decisions not being reflected in the will.

In the first instance, at the High Court, it was held that the wills were invalid, and the signing of the incorrect will was not a clerical error but something much more serious. This rendered the wills invalid, with the Rawlings estate passing to the two biological sons. The ‘adopted’ son appealed the decision but the Court of Appeal agreed with the High Court and upheld it.

The ’adopted’ son did not accept this and appealed again to the Supreme Court, which is the highest Court in the UK. Some seven years after the death of Mr Rawlings, the Supreme Court found in favour of the ‘adopted’ son and agreed to rectify the wills.

The Supreme Court found that Mr and Mrs Rawlings had unambiguously meant to execute their own wills to give effect to the contents, but the wrong wills had been signed due to a clerical error on the part of the will drafter. Therefore, the wills were rectified to reflect the provisions as intended to be signed by Mr and Mrs Rawlings. The ‘adopted’ son inherited the whole estate at exclusion of the biological children. In addition, all parties’ costs were ordered to be paid by the will drafters’ insurers on the basis that the signing of the incorrect will was held to be a clerical error on their part.

Prior to this case, only drafting or clear clerical errors had been rectified using the provision in the Administration of Justice Act. The judgment held down at the Supreme Court expanded the scope of the rectification of wills and, as such, is considered a landmark case that is relied on frequently by practitioners.

It is vital to obtain proper legal support when drafting your will, but if something does go wrong, DMH Stallard has an excellent team of contentious probate lawyers who can assist you.

About the authors


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Cathryn Culverhouse

Partner

Expert in a wide range of complex contentious probate disputes including 1975 Act claims, validity disputes and undue influence claims.

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