Married couples who have begun the estate planning process probably already know that it is common to create complimentary wills with one’s spouse. Some people choose to create joint wills or wills that take the other’s plans into account, while others choose to keep their last will and testament confidential and separate from their spouse. There is no one right way to complete this process, it is up to the individuals to determine what makes the most sense for them.
In one recent case of a couple who created identical wills, a mistake in the execution process led to a conflict in court. The identical wills were apparently switched during the singing and witnessing process and each spouse accidentally signed the other’s will. This became an issue after the second of the two spouses passed away in 2006 and the wills were closely examined.
Upon inspection, it became clear that the wills had not been signed by the correct person as a result of a mistake by the lawyer who assisted them. The couple’s two sons argued that the wills should be disregarded and that their property should pass by default laws (called the laws of intestate succession). However, a third party argued that they should not be thrown out. The third party was a man who had a close relationship with the couple and had been referred to as one of their “sons” but who was not related to them by law. The couple had left him a substantial bequest in their wills.
After review by a court, the judge found that the documents did have a major error but that they should not be defeated on that reason alone but instead interpreted as though the error had not occurred. This case took place in the United Kingdom but it is likely that the outcome would be similar in the United States, since most courts will look at a clerical error and assume the most reasonable re-interpretation.
Source: Daily Mail, “Man wins legal fight over £70,000 inheritance as Supreme Court agrees there was a ‘clerical error’ in the will,” Jan. 22, 2014.