Esther Marshall
Contested Wills and Financial Provision
Disappointed beneficiaries
Writing a Will has a number of important benefits. The most important of which may be to ensure that one’s assets pass to your chosen beneficiaries.
DIY or homemade Wills may seem an attractive idea, particularly where someone’s assets are relatively straightforward. A simple search of the internet will yield many pro forma Will templates. However, a recent Court ruling highlighted that the lack of involvement of experienced lawyers in an amended Will was part of the problem in a dispute over which document achieved the deceased’s final wishes.
The recent case of Henrietta Ingram and Anor v Simon Timothy Abraham and Anor has highlighted the problems that can arise from the formation of DIY wills, where lawyers are not involved in the drafting process. The Judge found Joanne Abraham’s later Will did not achieve what she wanted, which was ‘to secure the benefit of her estate for her children, apportioned to reflect their life-time gifts’.
The case focused on two different documents drafted in 2008 and 2019. Mrs Abraham died in February 2021. She was 58 and left two adult children, Henrietta and Tom, and their younger brother Simon.
Mrs Abraham made a Will in 2008 which she altered in 2019 making Simon the executor. The 2019 Will was drafted using a template Will kit from the internet. The 2019 Will was prepared without any professional guidance. The Will failed to carry out the deceased person’s intentions due to a lack of the required formalities. The Judge held that Mrs Abrahams had not understood the effect of the 2019 Will. The Will was later deemed invalid by the court. No such problems should have arisen if a competent lawyer had been instructed to prepare the Will. That does not mean that problems do not arise.
If a Will or codicil is deficient or a delay has meant that the Will has not been executed before the testator’s death, then any previous Will is admitted into probate or the Intestacy Rules will take effect. If there is no other Will, this can mean that there may be disappointed beneficiaries. They may no longer have a right to inheritance under the deceased’s estate, they may instead have a claim against the solicitors who failed to ensure the updated Will was executed on their basis of their professional negligence.
Martyn Trenerry, Member, Solicitor and specialist in Dispute Wills, said:
“For a Will or codicil to be valid, it must comply with the formalities as set out in Section 9 of the Wills Act 1837, and the testator must have testamentary capacity to execute the Will. Where there is doubt as to a testator’s capacity, solicitors will often obtain an expert opinion from a medical practitioner as regards the testator’s capacity prior to the execution of any Will. Failure to do so may render the Will invalid. Failure to sever the joint tenancy of a jointly owned property may mean that the property passes to the co-owner by survivorship and no longer forms part of the deceased’s estate.”