Published on: 19th October 2016

Has your Will been attested correctly?

Making sure that you sign your Will correctly is really important; as highlighted in the case of Marley v Rawlings. This case has been rumbling through the courts now for several years. The facts are quite straightforward. Alfred and Maureen Rawlings signed each other's Wills by mistake. The High Court and Court of Appeal said this meant the Wills were not valid, the effect being that £70,000 (being the cash residue of the estate) did not go to Mr. Marley (who lived with Alfred and Maureen) as intended, but went to the couple's children instead under the intestacy laws.

Mr. Marley applied to have the Will rectified. Rectification is available if there is a clerical error which means the Will does not give effect to the testator's intentions. For example, if £400 is accidentally typed instead of £4000 the court can order that the Will should be read as the testator intended it, not how it actually appears.

The Supreme Court has now had the final say on the matter, confirming that the Will could be rectified. In doing so, it confirmed that "clerical errors" can include far more than simply spelling mistakes. It also confirmed that the Will in question may not actually need to be valid before it is rectified, as long as rectification would cause it to be valid.

Rectification is a very costly exercise and will not always be granted by the court. It is always best to make sure that any current (and future) Wills are correctly "attested". Attested means dated and signed in front of two independent witnesses who then also sign the Will whilst all three people are present.

Casey & Associates does offer an attended attestation service but some clients prefer the flexibility of carrying out the process themselves. We provide detailed notes but in general terms these are the steps to take:

1. Make sure the Will you are about to sign is yours (not your spouse's or partner's Will).
2. In front of two independent witnesses (who are not people who could ever inherit from your estate) date and sign the Will. Each witness then signs and completes their details in the presence of you and the other witness. If you ask someone to be your witness and they are a beneficiary in your Will then they will disinherit themselves. So never ask family or anyone mentioned in your Will or the family of anyone mentioned in your Will to be a witness.
3. Once you and your two witnesses have "attested" the Will just take a few moments to check everything has been done correctly. It may be many years before the next time someone looks at the Will.

Please remember that Casey & Associates provides a Will attestation checking service for Wills we have created. Please send the Will to us with a note asking us to "check the attestation". We recommend that you send your Will to us using "Royal Mail Special Delivery".

Furthermore, we offer an in house "Will storage" service which we strongly recommend to clients. Wills are stored in our fire resistant cabinets.

Finally ~ If you do not store your Will with us do you know where it is and whether it is attested correctly?

If you need any help or advice please do not hesitate to contact the team at our Edenbridge administration office.

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