It's common for spouses to execute a joint estate plan, signing their respective wills at the same time under the advice of the same estate planning attorney. What's uncommon is when the spouses inadvertently sign each other's wills. While it may sound ridiculous that such an error would go unnoticed, just such a situation occurred in the United Kingdom—and it required a decision by that country's Supreme Court to correct the mistake.
Marley v. Rawlings
Alfred and Maureen Rawlings made their wills in 1999. They hired a solicitor—an English lawyer who specializes in estate planning—to prepare the documents. The wills were not complicated. Each spouse left his estate to the other, and if the other spouse was already dead, the estate would pass to Terry Marley, a family friend. The Rawlings had two children but, for whatever reason, they chose not to include them in their estate plan.
The solicitor accidentally mixed up the Rawlings wills, so that Alfred signed Maureen's will, and vice versa. The mistake went unnoticed when Maureen Rawlings died in 2003 and her estate passed to Alfred Rawlings. But when Alfred Rawlings died in 2009, his sons challenged the will. They argued it was not validly executed under British law as Maureen Rawlings was the person named in the document.
The children had good reason to challenge the will. Like California, under British law, if a person dies without a will, his children automatically inherit the estate as next-of-kin. Terry Marley, the sole beneficiary named in the will, obviously objected to the children's' contest.
An English probate judge rejected Marley's efforts to probate Alfred Rawlings' erroneous will. The Court of Appeal for England and Wales upheld the probate judge. Both courts agreed the will was not executed in accordance with the applicable English law. (Similar to American states, England and Scotland have distinct probate law systems.) Marley then appealed to the Supreme Court of the United Kingdom.
That court unanimously ruled for Marley and held the will could be admitted to probate. Lord Neuberger, the president of the Supreme Court (the equivalent of our Chief Justice) said that British law permitted courts to rectify “clerical errors” in wills in order to carry out the intent of the person making the document. Nobody disputed Alfred Rawlings intended to sign a will leaving his estate to Marley. The solicitor's mistake should have been corrected by the lower courts, according to Lord Neuberger.
Read Before You Sign
Obviously, this extended litigation would have been unnecessary had the Rawlings taken time to read their wills 15 years earlier before signing them. A simple “clerical error” proved anything but simple to correct.
In California, a will that is not properly executed may still be admitted if the person presenting the will can show “by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator's will.” That suggests an error like the one in the Rawlings case would not be fatal. But again, it's best not to leave it up to the courts. That's why it's important to work with an experienced San Diego estate planning attorney when drafting a will. Contact the Law Office of Scott C. Soady today if you have any questions.