26 January 2021
A will sets out who you wish to benefit from your estate when you pass away. That sounds simple enough however the law is clear and strict legal formalities need to be complied with to ensure a will is valid.
If they are not complied with, the will has no legal effect and either an earlier will (if not otherwise revoked) will apply, or the deceased will have died intestate and the intestacy rules will dictate who will benefit from their estate. Both an earlier will and the intestacy rules may mean that beneficiaries who the deceased specifically wished to exclude share the estate, and those they specifically wished to benefit miss out. Wherever possible, it is therefore recommended that wills are professionally prepared to ensure the deceased’s wishes are fulfilled.
The press recently commented on a case heard in the High Court last year which highlights some issues that can arise when DIY wills are prepared and also the media interest that can be attracted from disputes of this nature.
The reports indicate that Mr Tibbles passed away in 2018. A will drafted by Mr Tibbles’ solicitor in 2017 left his entire estate to one of his daughters, Terri, however three days after his passing an alleged later will was brought to light which left his entire estate to his other four children and completely disinherited Terri. The alleged later will was handwritten on a piece of paper seemingly torn from a notebook and the 2017 will was supported by a letter of wishes explaining why he was not benefitting his other children. Terri alleged that there was no evidence that the later will was actually written by her father and sought to uphold the 2017 will.
For a will to be valid it must:
- be in writing
- be signed by the testator, or another person must sign it in their presence and at their direction
- appear that the testator intended by their signature to give effect to the will
- have been signed, or the signature acknowledged, in the presence of at least two witnesses present at the same time
- be witnessed by two people who sign, or acknowledge their signature, in the presence of the testator (but not necessarily in the presence of any other witness).
The testator must also have had testamentary capacity when giving instructions for the preparation of their will and not have been unduly influenced by anyone else.
In the recently publicised case, it has been confirmed that the judge found there was no evidence to show who wrote the will and whether it was written at Mr Tibbles dictation, who was present when that occurred, and what his state of mind was at the time. There was no real explanation for his change of mind, and no evidence about him signing it. Handwriting evidence appears to have cast considerable doubt on whether the document was actually written by Mr Tibbles at all. As noted above, the fact he didn’t actually sign it wouldn’t have been fatal but other evidence that he directed the will to be made, and signed, was also missing.
Based on the evidence, the judge held that the later will was invalid and upheld the 2017 will leaving Terri to inherit the entirety of her father’s estate. This could have been exactly what her father wanted but the family will no doubt always disagree on that.
Even if the will had been professionally prepared, Terri may still have been concerned as it was made so close to her father’s death and was in stark contrast to the 2017 will. However, had a solicitor prepared the will they should have kept records which evidenced (amongst other things) who gave the instructions, who was present when the will was signed, why Mr Tibbles had changed his mind so dramatically and that he had capacity to make such a change. The parties could have made a request to the solicitor for information relating to the drafting of the will and that information may have greatly assisted in establishing its validity.
Ineffective and poorly written wills cause many thousands of disputes per year. A dispute will delay the administration of the estate and will often incur significant legal costs to resolve. A will dispute that hinges on one of the formalities not being complied with can also mean that the testator’s wishes are simply not fulfilled. It is therefore highly recommended that expert advice is sought when your will is prepared and that all wills and estate planning are kept under regular review.
If you would like advice in relation to your will or estate planning please contact a member of our Private Client Team. If you are involved in a dispute concerning a will, trust or estate, please contact a member of our Contentious Trusts and Probate Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2021.