Professionally drafted Wills – is it worth it?

The recent case of Ingram and Whitfield v Abraham [2023] EWCH 1982 (Ch) is another example where a testator's Will was set aside due to lack of knowledge and approval of its contents. The Judge stated that this would have been different had the Will been drafted by a competent Lawyer.

The background

Jo, a single mother of two adult children, died aged 58 on 2nd February 2021 after battling cancer.

In 2008, she instructed a solicitor and put a Will in place, leaving her estate divided equally between her two children, Henrietta and Tom.

Jo’s intention to change her 2008 Will was common knowledge within the family, and she discussed this openly with her children.

In 2019, she executed a new Will, gifting her book collection to her sister-in-law and the residue of her estate to her brother, Simon. Simon was also appointed as her sole executor and acted as her attorney under the Lasting Power of Attorney, prepared in 2019.

The 2019 Will was drafted for Jo by Simon. He claimed that Jo had given him clear instructions, acting upon which he filled in an online Will template and produced a draft. Simon then emailed and posted the draft to Jo. According to Simon, Jo approved the draft. He also claimed that he read the Will to her over the phone. Simon stated that the Will was so straightforward that Jo could not have misunderstood its terms. He also explained that Jo had reasons for changing her mind between 2008 and 2019 and not wanting to benefit either of her children. The Will was executed at Jo’s house, and the previous 2008 Will was  presumed burnt.

Henrietta and Tom brought a claim against Simon as Executor of the 2019 Will  based on their mother not knowing the Will's contents and therefore it’s lack of approval. The validity of the execution of the Will was not disputed. The siblings accepted that their mother’s signature was on the Will, however, they disputed her initials added to each document page. In addition, Jo’s name was misspelt throughout the document. Henrietta and Tom claimed that if she had read it, she would have noticed the error and insisted on its correction

They claimed that their mother wanted to provide for them throughout her life. They accept they had their ups and downs as a family, but all issues had always been resolved quickly and turned into inside family jokes. Their understanding of Jo's plans for the 2019 Will was that she wanted to replace her executors and ensure that the gifts each of them had already received from her during her life were taken into account when distributing the estate to them. She wanted each of them to receive the same amount overall.

The law

For the Will to be valid, the testator must know and approve the document’s contents at the time of its execution. If the Will is executed correctly, knowledge and approval are presumed. The party claiming invalidity of the Will, as a general rule, must rebut this presumption. However, if there are suspicious circumstances around the will-making process, the party arguing the validity of the Will must disprove the suspicion.

The court's suspicion as to the testator knowing and approving the Will's contents will be raised in cases where:

• The beneficiary prepares the Will;

• The testator was without legal advice;

• The Will is a radical departure from previous instructions and

• The testator's "feebleness of body or mind".

In such cases, the court will consider whether the testator understood what was in the Will when they signed it and what the Will’s effect would be.

In other words, the court will examine whether the testamentary requirements have been met rather than whether the desired outcome was achieved. It is not up to the court to depart from a valid Will; the morally correct thing to do is irrelevant.

The outcome

There was overwhelming evidence from Jo’s friends and in the form of voice recordings and various messages to support Henrietta’s and Tom’s claims.

The court commented on a discrepancy between Jo’s initials on the 2008 copy Will  that was available and those  on the 2019 Will and consistency in her signature throughout these years. One of the two witnesses to the Will could not recall seeing Jo adding her initials to the document, nor Jo reading the document, or the Will being read over to her.  

The court also noted that Jo was an avid reader and a wordsmith; therefore, she would have noticed the misspelling of her name should she read the will.

The court found that Jo wanted to leave her estate to Simon, not as an outright gift, but for him to account for Henrietta's and Tom's respective gifts and distribute the estate to her two children so that there is an overall balance between what each Henrietta and Tom receives. In the judge's view, Jo believed Simon would act according to her wishes. She could not have known that she had effectively disinherited her children due to a lack of incorporating these wishes into the Will. In the judge’s view, Simon had contributed to Jo’s misunderstanding of the terms of the Will.

The Judge commented that a l lawyer would have understood this and left Jo's estate on the terms of the discretionary trust, with Simon being its trustee.

The Will was set aside, and the Judge ruled the 2008 Will should be admitted to probate.

How can we help?

Although making your own Will does not automatically mean it will be invalid, there is a high risk of any number of issues arising from minors, such as requiring additional evidence when the grant of probate is applied for to complete invalidity of the whole document.

Our dedicated Private Client team can help you prepare a valid Will that reflects your wishes and advise on alternative solutions tailored to your unique circumstances. Contact us today on 0333 577 2250.