Will Executed in Error cannot be rectified by High Court

 

In an unfortunate recent case, the High Court concluded it couldn’t use the Administration of Justice Act 1982 to correct an obvious error made in executing a will. Under that Act a “clerical error” can be corrected. Elizabeth Nicholson a partner in Chattertons Solicitors says: "A very unusual case, with lessons for all to think about.”

The court was asked to consider “mirror” wills executed by an elderly couple, in which each bequeathed their entire estate to the other and then, on the second death, the whole to a man they had cared for since he was 15 years old and whom they regarded as their son. The problem was that despite witnesses being present, each signed the other’s will by mistake, and the error went unremarked until they had both died. The court ruled that despite the fact that this was obviously a mistake, the wills could not be rectified as they had not been executed validly in the first place. The judgement means that the estate will pass, under the intestacy laws, to the couple’s natural children, who were not close to their parents, and who had been excluded under the wills.

Elizabeth comments: “This case couldn’t more clearly demonstrate why using a solicitor is vital. For two reasons, first to get it right in the first place, but second, if it does go wrong, the solicitors’ professional indemnity insurance stands there to rectify the error where the Courts can’t, as will probably happen in this case.”