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Contesting a Will


Things to think about when contesting a will

Landmark judgement in the Supreme Court – what does it mean for those who have been potentially disinherited because of a “clerical error” in a will?

The case of Marley v Rawlings concerned Maureen and Alfred Rawlings who had drawn up mirror wills in 1999 intending to leave their entire estate to Terry Marley. Terry was not a blood relative. Mr & Mrs Rawlings had two sons, who were not the intended beneficiaries under the will.

Upon Alfred Rawlings death, it came to light that there had been a mix up with the wills. Alfred and Maureen had signed each other’s wills. Their sons sought to argue that Alfred’s will was therefore invalid because it had been signed by the wrong person. Both the High Court and the Court of Appeal agreed with the sons. After all, section 9 of the Wills Act 1837 clearly states that in order for a will to be valid it must be “signed by the testator; and it appears that the testator intended by his signature to give effect to the will.”

If the will was invalid it would mean that Alfred Rawlings had died intestate and his estate would be distributed according to the rules of intestacy. The first person in the set order of priority would be his wife, followed by his children. Terry Marley would get nothing.

Terry challenged the decision. In handing down his judgement in Mr Marley’s favour, Lord Neuberger said that the wills of Alfred and Maureen Rawlings should be treated in the same way as a commercial contract in that an obvious oversight should not be allowed to invalidate the testator’s wishes.

The impact of this case could be far-reaching. Lord Neuberger said that the aim is to identify the intention of the party. How far can the concept of a “clerical error” be stretched? If a testator’s signature is not witnessed, can this now be deemed an “obvious oversight?” Only time will tell.

If you need advice in relation to contesting a will, we can help you. Contact us now.



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