The England & Wales Court of Appeal has ordered that a clerical error in the signing of Wills by a husband and Wife can be rectified after the event. Victoria Emmett, Partner says, “The creation of a valid Will follows very strict rules in relation to how it is signed and witnessed”.
In this case, a solicitor had been instructed by the husband and wife to draft identical wills leaving his or her estate to the other and, if the other spouse had already died, to the claimant, whom they treated as an adoptive son. Through the solicitor’s mistake each signed the other’s will. The error was not noticed on the wife’s death but, on the husband’s death the natural sons of the husband and wife, who would succeed to the entire estate on intestacy, challenged the validity of the will signed by the husband.
For a will to be valid, it is required in law that the will must be in written form, signed by the testator or his representative in his presence, witnessed by at least two witnesses and that by his signature it appeared that the testator had intended to give effect to the will.
The court found that, although the will executed by the husband did not have his full knowledge and approval, there was a certainty as to his intention and as to how he would have expressed himself, if he had appreciated the mistake. Accordingly it rejected the claims of the natural sons of the husband and wife and allowed the directions of the will to stand.
Victoriacomments “The Court has clearly used its discretion in this case to allow a simple clerical error to be corrected; however, the ruling also underlines the need to follow correct procedure in signing and witnessing of wills”.
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