What happens if a husband and wife accidentally sign each other’s wills?
The answer to this will depend on whether the husband and wife are both still alive or if either, or both, has passed away. If they are both still alive then correct the situation immediately by signing new wills. If either, or both, have passed away and it is necessary to prove either will in the Probate Registry to cash the assets of the deceased then an application will have to be made to the Court for rectification. A will can be rectified by the Court for a clerical error. The power of the Court to do this has to be balanced with the requirement that to be a valid will the person signing it must know and approve its contents. How can it be said that there is knowledge and approval when they sign the wrong will? In a case before the High Court in 2014 Mr Rawlings had died having signed his wife’s will. He had left his estate to Mr Marley who he treated like a son. Mr Marley was not his son. Mr Rawlings had 2 sons who he did not wish to receive anything. Luckily for Mr Marley (and probably for Mr Rawlings’ solicitor too) the High Court agreed that they could rectify the will for a clerical error. They said they had no doubt on the face of the will and from other evidence that it was Mr Rawlings’ intention to give effect to the will. The case serves as a timely reminder of the complexities involved in will drafting and the necessity for attention to detail to avoid disputes.

What if witnesses do not sign a will?
For a will to be valid it must be in writing signed by the testator (the person making the will) with two or more witnesses present who also sign. In the case of the estate of John Henry Adrian Payne in 2018 the Court heard that John died in 2012 leaving two wills or purported wills. The second will had been prepared in 2012 a few months before his death. It was a homemade will and purported to appoint John’s son (also called John) and grandson as his executors. The will left most of John’s estate to John Junior. The will did not have a proper signature clause and the supposed witnesses were the grandson’s girlfriend and her mother. The Judge declared that she could not find any evidence that the 2012 will had been correctly witnessed or that John knew and approved of the contents of the will. She found the evidence of the witnesses totally unreliable. There was an earlier will made in 1998. Again, this was a homemade will but on a printed form. The will was signed by John. Two witnesses’ names had been printed next to John’s signature with addresses and occupations. The Court of Appeal was prepared to hear evidence from the witnesses as to whether the will was properly signed even though there was no apparent signature from the witnesses. The Judge said the mere writing of their names can constitute a signature and there is no need for a “personal and unique mark”. Again, when signing and witnessing a will be vigilant and check that it is done properly to avoid problems later.

Can you apply for probate if you do not have the original will?
If an original will cannot be found then there is a presumption that it has been cancelled by the testator. However, that presumption can be rebutted and a copy will admitted to probate if evidence is produced to the Probate Registry in the form of a statement of truth submitted with a copy of the will. This may happen if for example there was evidence that the original will was in existence when the testator died but it had been subsequently lost in the post or in some other way. Always take care with original documents and keep them in a safe place.