Signing the Wrong Will


In recent times there have been a number of Australian cases regarding the validity of mirror wills made by a husband and a wife in circumstances where each has inadvertently signed the other’s will.

In Australia, there has been some confusion as to the proper method for overcoming this problem.  One approach taken by the courts has been to admit to probate the document signed by a deceased person even though the body of that document contemplates that it is a will made by another person.  That will, when admitted to probate, can be rectified by the court under Part XII of the Wills Act “to carry out the intentions of a deceased testator (where) the court is satisfied that the will does not carry out the testator’s intention because –

  • a clerical error was made; or
  • the will does not give effect to the testator’s instructions.”

The alternate approach was to admit to probate, under Part X of the Wills Act, the will prepared for the deceased but which was not signed by him.  Part X provides that where a will does not satisfy all of the formal requirements, such as being signed by the deceased, it may still be admitted to probate if the court is satisfied that the deceased intended the document to constitute his will.

All the relevant Australian decisions were made by single judges.

It may be that the confusion has been resolved by the decision of the Supreme Court of England in the case of Marley v Rawlings.  The Supreme Court is the highest judicial body in England.  In that case Mr Rawlings signed the will meant for Mrs Rawlings and vice versa.  By his will Mr Rawlings left his whole estate to his stepson and nothing to his natural children.

The trial judge and the Court of Appeal found that there was no document that constituted a will which could be admitted to probate and as there was no will, there was no document that could be rectified by the court to give effect to the testator’s intentions.  As a result, the lower courts found that the whole estate passed to the deceased’s children under intestacy, even though it was clear that this was not the deceased’s intentions.

The Supreme Court, however, found that the document signed by Mr Rawlings was intended by him to be his will and that it satisfied the formal requirements of a Will as to signing and witnessing etc even though the contents of the will had no relevance to Mr Rawlings.

It found that the error in signing the wrong wills fell within the term “clerical error” and was capable of rectification under the English equivalent of Part XII and as a result the stepson was entitled to the whole of the estate. The children got nothing.

The common law position was that a court had no jurisdiction to rectify a will but this was remedied in Western Australia in 2007 by the inclusion of Part XII into the Wills Act which now expressly allows for the rectification of a will.

The decision of the Supreme Court produced a fair result and avoided an injustice being done to the stepchild.  It would appear that the English court was forced into its decision because there was no English equivalent of Part X of the Wills Act.

The English decision is not binding on Australian courts and it remains to be seen whether the Australian courts will follow it.

For more information on this update or any other wills and estate matters please contact David Miller on (08) 9321 3755.

The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.