A RECENT decision of the Supreme Court was packed full of common sense but sent probate lawyers into shock.

The case involved a Mr and Mrs Rawlings who executed ‘mirror wills’. The wills were identical with each spouse leaving his or her entire estate to the other, or if they failed to survive each other by one calendar month, to their adopted son Terry.

The wills did not pass any of their estates to the couple’s two biological sons.

The rules surrounding execution (signing) of wills are strict. Requirements are laid down in the Wills Act 1837. To be valid, a will must be in writing and be executed by the person making the will in the presence of two witnesses.

The Rawlings’ solicitor travelled to the Rawlings home with the typed wills to ensure they were properly executed. Unfortunately, Mr Rawlings signed Mrs Rawlings’ will and Mrs Rawlings signed Mr Rawlings’ will. The error only came to light when Mr Rawlings died in 2006. His wife had died earlier.

If the wills were invalid, any estate would pass to the biological sons. Terry would receive nothing.

This would be under the rules as to what is called intestacy.

In this case, there could be no doubt of the parties’ intentions. However, the wills had been invalidly executed. Terry sought rectification – a court order to correct the mistake.

“No” said the High Court and the Court of Appeal. Both held that the will was invalid and could not be rectified.

The Appeal Court found that although the intentions of the couple were clear, the wills were invalid as the correct testator had not signed the correct will. Looked at logically, the wills had not been signed.

The wills were invalid, the estate would pass to the biological children and Terry would inherit nothing.

Terry went to the Supreme Court in 2013. “Yes” said the Supreme Court. His appeal was allowed unanimously.

Common sense prevailed. However the court had to twist and turn to ensure that the decision could be justified legally. The court held there was certainty as to what Mr and Mrs Rawlings wanted. Mr Rawlings’ will could not be Mrs Rawlings’ and vice versa.

The court held that there was a will, although that will itself did not make sense. The court looked at the parties’ intentions. The court allowed the appeal and held the will should be rectified so it contained the typed parts of the will signed by the late Mrs Rawlings in place of the typed parts signed Mr Rawlings.

The decision is correct and a matter of common sense. There could be no doubt as to the Rawlings’ intentions but it does drive a coach and horses through established law.

The decision was greeted with surprise. It is not the case that Terry did not have a remedy if the wills were invalid. He could have sued the solicitors for negligence and the solicitor’s insurance would have met the claim. However the court decided on a common sense way which is to be welcomed.

What it means for lawyers is that it is not enough to record someone’s intentions when they make a will but the reasons behind their intentions should be recorded and kept with the will should a need arise to refer to them.