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Wills

Signing the wrong will

You can imagine it can’t you?  Your client has died and so you get the will from deeds.  You prepare the probate application and attend on your client’s surviving spouse.  You talk gently about the loss.  The probate documents are ready for submitting and then you happen to notice that the survivor’s signature is very like the signature on the will.  How odd.  Well they lived together a long time – perhaps their signatures morphed.  Just to be careful and to put your mind at rest you look at the survivor’s will.  The signature is completely different.

Oh dear.  The wills got transposed in your office when you attended on your clients all those years ago.

It is not a good moment.

While nothing will prevent the awkward discussion with the executor the situation is fixable. It will come at a cost and will require a High Court application. 

The situation although unfortunate is not entirely uncommon.  In fact at roughly the same time the New Zealand High Court and United Kingdom Supreme Court both heard cases where spouses each signed the wrong will.

The respective courts reached the same decision, that is that the wishes expressed in the unsigned will reflected the will-maker’s instructions.  However, the paths to this result was somewhat shorter in New Zealand due to the ability to apply s 14 of the Wills Act 2007 to declare a document to be a valid will even if it does not comply with the signature and witnessing requirements of s. 11 of the Wills Act.

The approach in the United Kingdom was less straight-forward as the option of declaring an unsigned will valid was not available.  Instead the matter was addressed through an order thatt he signed will be rectified to reflect the terms of the will that was drafted (but signed by the wrong person).

Obviously the message is, make sure the right person signs each will.  However, where such a mistake occurs, all is not lost.

References:

  • In the Estate of Subramaniam [2014] NZHC 1484
  • Re Ioane HC Auckland CIV-2009-404-5527, 27 October 2009
  • Marley v Rawlings

[2014] UKSC 2

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