Mixed-Up Mirror Wills: Rectification Allowed in Canada, Not in U.K.
In the recent decision of Marley v. Rawlings 2012 EWCA Civ 61, the England and Wales Court of Appeal (“EWCA”) recently held that mirror wills executed by a couple are void because each spouse mistakenly signed the other's will, and held that the court did not have jurisdiction to permit rectification in such circumstances. This decision stands in contrast to Canadian jurisprudence on point.
In Marley v. Rawlings, the testators were an elderly married couple, Alfred Rawlings and Maureen Rawlings. In 1999, they instructed their lawyer to prepare mirror wills. The wills were very short and, except for the obvious differences to reflect the identity of the testator, were in exactly the same terms. In their mirror wills, each left his or her entire estate to the other spouse or, if the other spouse had predeceased, to their adopted son (who was not related to them or legally adopted, but whom they treated as their son). Although the couple’s lawyer and his secretary went to their home to supervise and witness the execution of the wills, they both managed to sign the wrong wills without anybody noticing. Mr. Rawlings signed the will prepared for Mrs. Rawlings, and vice versa. The error was not noticed until the second death, that of Mr. Rawlings, seven years later (as the majority of Mrs. Rawlings’ assets were jointly owned with Mr. Rawlings and passed to him by right of survivorship following her death). Mr. Rawlings' will was thus, on the face, invalid and inadmissible for probate. As a result, Mr. Rawlings’ estate did not pass to the couple’s adopted son, their intended beneficiary. Instead, under the intestacy rules, it would pass to the couple's two natural sons, who had not been not mentioned in the mirror wills. The adopted son commenced proceedings seeking rectification of Mr. Rawlings’ will, and probate in solemn form of the will as rectified.
At trial, the trial judge declined to rectify Mr. Rawlings’ will, noting that the error concerned was neither clerical, nor a failure to understand the testator's instructions as required for rectification under section 20 of the U.K.’s Administration of Justice Act 1982. On appeal, the EWCA upheld the trial judge’s finding that the court did not have jurisdiction to rectify the will in such circumstances, and reluctantly upheld the finding that Mr. Rawlings died intestate.
The EWCA’s decision in Marley v. Rawlings stands in sharp contrast to Canadian jurisprudence on point. There are a number of authorities in Ontario, Saskatchewan, Manitoba, British Columbia, and Alberta where an identical situation has occurred, and courts have allowed rectification and admitted the rectified will to probate: See Re Brander Estate, [1952] 4 D.L.R. 688 (B.C. S.C.), Re Thorleifson (1954), 13 W.W.R. 515 (Man. Surr. Ct.), Re Knott Estate (1959), 27 W.W.R. 382 (Alta. Dist. Ct.), Re Bohachewski (1967), 60 W.W.R. 635 (Sask. Surr. Ct.), and Re Malichen Estate, 6 E.T.R. (2d) 217, (Ont. Gen. Div. Dec 22, 1994).
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