An unusual and quite important case has been decided by the Supreme Court, which we used to call the House of Lords.

Mr and Mrs Rawlings had unofficially adopted a man called Terry as their son, and they each made Wills leaving most of their Estate to him. Unfortunately when they came to sign their Wills there was a mix up, and they each signed the other’s Will. This mistake did not come to light until they had both died. The couple’s sons argued that there were no valid Wills in existence, and that there was an intestacy from which they benefited but from which Terry received nothing. The argument put forward by the sons was accepted by the County Court and on appeal by the Court of Appeal. The court has long enjoyed a power correct some mistakes in Wills, but the Judges found that there was nothing that could be done in this case. Their reasoning was that there were no Wills in existence, because a Will needs to be properly signed and witnessed, and this meant it had to be signed by the person for whom it was prepared.

The Supreme Court has taken a very different approach. It decided that the Court’s power to correct “clerical errors” could be used in this case. Their Lordships felt that it was quite clear what Mr and Mrs Rawlings were trying to do and ordered that the text of the whole Will signed by Mr Rawlings should be substituted in the Will signed by Mrs Rawlings, and vice versa. This bold interpretation by the Court and the consequent use of its powers has come as something of a surprise to lawyers practicing in this field, although many will feel that it is an example of fairness triumphing over a technicality.

The downside is illustrated by the fact that the Rawlings’ Estate was apparently only worth £70,000, and it seems inevitable that the costs of the litigation far outweighed this. It is expected that there will now be more cases where competing parties argue about whether something should be treated as a “clerical error”.