ICYMIProbateWillsIn CASE you missed it…

31st March 2021Siobhan Smith0
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In this feature we examine key cases in relation to will writing and other estate planning activities to keep you up to date on recent developments in the law. All cases covered will be recent, relevant, and widely reported. This time we are looking at Re Williams (Deceased) [2021] EWHC 586 (Ch).

The claim

This case involved a claim that a deceased farmer’s will was invalid on the grounds of lack of knowledge and approval, meaning that an earlier will should be admitted to probate instead.

The deceased was divorced and left four sons. His estate was mainly comprised of his farmland and share in his farming partnership. One of his sons, Richard, had worked the farm with his father for his whole life so it was to him that the deceased left his share of the farming partnership and an option to purchase the farm. The residue of the estate was split equally between the four sons. This original will was drafted in 1990.

In 2014 the deceased opted to change his will and this is where the problems arose. He initially gave his instructions for the new will to the secretary at his solicitor’s firm, who saw him in person and recorded appropriate file notes. The instructions to the secretary meant that Richard would have the agricultural tenancy and a 62.5% share of the reversion with a further option to purchase the remaining 37.5% share.

A paralegal from the firm later called the deceased to confirm the instructions. Her file notes indicated that the deceased wished for Richard to inherit the farm outright, contrary to the instructions that had been given to the secretary.

A will was prepared leaving the farm to Richard which the testator approved after having corrected a wrong address. It was then signed in person at the solicitor’s firm with Richard in attendance at the deceased’s request.

The law

One of the requirements for a will to be valid is that the testator know and approve of its contents. There is a presumption that the testator had knowledge and approval if they had capacity and the will was properly executed. This is partly why we have attestation clauses, to confirm that the testator has read their will or had it read over to them and understood its term before signing.

This presumption is rebuttable. Claims against wills on this ground are uncommon but can arise where there are suspicious circumstances surrounding the making or execution of the will. Such suspicions may be that the main beneficiary was somehow instrumental in the drafting of the will, the will is drastically different from a previous will with no explanation, or the terms don’t match up with what the testator had previously told others about the distribution of their estate.

The outcome

In Re Williams (Deceased) the deceased’s capacity was not in question and there seemed to be some evidence that he had read his will and approved of it. After all, he had clearly read it to have been able to point out the incorrect address and after this had been corrected he had been happy to sign it.

In the end though it was concluded that there was a lack of knowledge and approval. The main arguments for this were that the 2014 will differed greatly from the original instructions given to the secretary and the deceased had not contacted the firm himself to make changes between giving instructions to the secretary and confirming his instructions with the paralegal.

Additionally, there had been no discussion about the option to purchase clause in the 1990 will being omitted from the 2014 will. This meant that the distribution of residue seemed odd.

To correct the issue the court turned to their powers to admit a will to probate with words omitted in order to give effect to the testator’s true intentions. This power was relied upon here to remove the gift of the farm to Richard.

Will writers should see this case as an example of the importance of keeping good file notes and making sure that a testator clearly understands their will before signing it. This should also serve as a reminder that where a will drastically differs from a previous will, either in who it benefits or how it benefits them, the reason for this change should be discussed in detail.

 

The full judgement can be accessed for free on Bailii here: http://www.bailii.org/ew/cases/EWHC/Ch/2021/586.html

 

Siobhan Smith

After graduating from the University of Lincoln with a 2:1 in Law in 2014 Siobhan has dedicated herself to will writing as a member of the Society’s technical team. Siobhan is also the main tutor for the College of Will Writing’s 4 day introductory course, taught monthly at the College.

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