The Supreme Court ruling in Marley v Rawlings, which said that a will, despite being mis-signed, may still be valid, could have a huge impact on the number of claims being brought where people believe there has been a clerical error in the drafting or signing of a will.
The Supreme Court case concerned mirror wills drafted back in 1999 which intended to leave the entire estate to a non-blood relation. However, there was a mistake by the testators (and the solicitor) as the testators accidentally signed each other’s will rather than their own.
Despite the Court of Appeal ruling that the wills are invalid and the intestacy rules should apply in this case (as in, there is no specified heir), the Supreme Court overruled the decision by stating that this clerical error should not keep the beneficiary under the will from receiving what the testators wanted.
In my view, common sense has won. The courts will now interpret wills by looking at the intentions of the testators rather than the true meaning of the words on the paper.
However, this is not without its drawbacks. With the increase in DIY wills, I am concerned that in the future these clerical errors will become more common and as a result this recent case will mean that more disgruntled heirs will have the ability to bring claims, whether rightly or wrongly. You could take the view that it is the lawyers who have won this case as some feel the floodgates have opened.
The key message to take from this case is the importance of making sure that wills are done correctly and accurately to avoid future legal costs and the potential pain, suffering and damage that these claims can cause to family relationships.
In my line of work it is easy to see how these errors can arise. It is rarely the case now that I have a client with a straightforward will. Clients have complicated family dynamics or they have assets situated in many different jurisdictions.
In these cases, multiple wills are needed and it is imperative that each foreign will makes reference to the others as there is a real danger that if the drafting is not done correctly the foreign will might revoke their UK will, which will cause complex administrative problems.
Clerical errors aside, there are also key tax issues that need to be considered when dealing with international assets. There are various tax treaties between the UK and other countries that can benefit the succession planning process.
Creating one will in the UK is rarely the answer. For example, about a year ago I undertook structuring a will for a client domiciled in India but who has been resident in the UK for the majority of their life.
Taking into account the double tax treaty the UK has with India, after careful planning we can ensure that only assets located in the UK are liable for inheritance tax while anything situated offshore is inheritance tax free.
Normally when an individual is resident in the UK for seventeen out of twenty years their worldwide estate is liable for inheritance tax.
The client has now passed away, but because of the planning done on this case we have managed to save the beneficiaries hundreds of thousands of pounds.
James Cohen specialises in multi jurisdictional wills and is a lawyer at GSC Solicitors LLP (www.gscsolicitors.com)