Rectification of Mirror Wills

Spouses or partners often make basic wills that are identical to each other. This is referred to as a mirror Will, the Wills are identical, but unlike mutual wills, are revocable. A simple Will leaves all of your estate to your spouse/partner, and if they die before you, the estate would go to your children. For example:

“I give devise and bequeath the whole of my estate to my wife Patricia Smith, but if my said wife fails to survive me by thirty days (30), then to each of my children in equal shares.”

In most cases a Will may be altered or revoked at any time. If after your death, your spouse re-marries and has more children they might change their will to leave their estate to their new spouse, and all their children. This means that your children will receive less of your estate.

This is an example of a mirror will. The wills are identical, but they are revocable.

Mark Johnson died in September 2012. In July 2003 Mark and his wife, Vicki-Liane, executed mirror wills, prepared by the same solicitor, on their joint instructions.

Following Mark’s death it was discovered that he and Viki-Lianne had each executed the will prepared for the other. One of the attesting witnesses was the solicitor who drafted the wills. The other was his legal secretary.

Vicki- Liane approached the Court to make an order to rectify the will in order that it reflect Mark’s intentions. The Succession Act 2006 provides that a court may make an order to rectify a Will to carry out the intentions of the testator, if it is satisfied that it is due to a clerical error being made, it does not give effect to the testator’s instructions. Vicki-Liane submitted:

(a) the document prepared for Mark, but executed by the Vicki-Liane, states Mark’s testamentary intentions;

(b) Mark intended that document to form his will; and

(c) the form of will in fact executed by Mark does not carry out his intentions because a clerical error was made in the process of execution of the mirror wills, and the will in fact executed by him does not give effect to his instructions.

The Court accepted that Mark signed a document intending it (albeit mistakenly) to operate as his will admitting the document to probate. However the Court admitted to probate the document Mark mistakenly signed intending it to be a will although the terms of the document signed were those of another, contemporaneous, proximate document.

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