The recent case of Ingram and Whitfield v Abraham identifies the potential consequences a family could face with the absence of legal expertise in will drafting.
In order for a will to be valid, the testator must have knowledge and approval of the contents of the will at the time of its execution. Essentially, they must understand how the will would operate following their death.
Where a testator has capacity and the will has been executed in the correct way, there is a presumption that the testator had knowledge and approval of the will. However, that presumption can be rebutted where the circumstances surrounding the will ‘excite the suspicion of the Court’. It is then for the party arguing that the will is valid to convince the judge that the testator did know and approve the will.
There were several factors that raised suspicion in this case, specifically:
- There was a radical departure from the deceased’s previous instruction.
- The sole beneficiary prepared the will using an online will kit.
- The testator’s name was misspelt.
- The will contained initials that were inconsistent with the initials that appeared on a previous will.
- No legal representation had been sought for the preparation of the will.
HHJ Berkley highlighted that the question before the Court is about establishing that the testamentary requirements are satisfied, not about assessing the desirability of the result. He reminds us that the Court does not have a discretion to depart from a valid will.
The leading authority in this area is Gill v Woodall, where the Court of Appeal confirmed that the correct approach when considering knowledge and approval was to ask a single question; had the testator understood (a) what was in the will when she signed it and (b) what its effect would be.
Background
Joanne Abraham was a hardworking single mother who successfully secured herself financially and was proud of her financial achievements. During her lifetime, Joanna was able to advance substantial sums of money to each of her children, including a lifetime gift of £90,000 to her daughter, Henrietta, the First Claimant, to enable her to pay a deposit on a house. The Second Claimant was her son, Tom.
The two Defendants were her brother, Simon and his wife, Hilary.
Joanne was diagnosed with cancer in 2017 and sadly passed away on the 2nd of February 2021.
In 2008, Joanne instructed solicitors to draft her will which outlined her desire to distribute the entirety of her estate between her two children in equal shares.
Joanne was largely estranged from her brother Simon, due to his overseas work commitments. However, following her admission to hospital in September 2018 and a serious deterioration in her health, Simon having been domiciled back in the UK, appeared back on the scene and became more present in her life. He would often turn up with flowers and hampers.
In 2019, Joanne had openly discussed amending her will. The claimants believed that the amendments their mother referred to were to take account for the imbalance in lifetime gifts that she had awarded her children as well as to remove the executor who had passed away and the one that she had fallen out with, replacing them with Simon.
Joanne signed a new will in 2019 which left her residuary estate to her brother Simon and gifted her book collection to Simon’s wife. Joanne trusted her brother whole heartedly and for this reason allowed him to assist in the preparation of this new will.
Upon Joanne’s death, the claimants were shocked to discover that they had been disinherited and that their uncle, Simon was the sole beneficiary. They challenged the authenticity of the will on the grounds of lack of knowledge and approval of its contents. While Tom and Henrietta accepted that the signature on the 2019 will was Joanne’s, they challenged the initials that appeared at the foot of each page. They maintained that it was not her usual way of initialling documents. They argued that either the will was not authentic or that it evidenced a state of mind/health which cast doubt on their mother’s ability to have understood or approved the will and its contents.
Outcome – why using legal expertise in will drafting is important
There was overwhelming evidence in support of the claimants’ case, including evidence from Joanne’s closest friends, various recordings and WhatsApp messages all of which indicated that it had always been Joanne’s intention to leave the entirety of her residuary estate to her children.
HHJ Berkley held that Simon failed to discharge the suspicion of the Court and pass the test established in Gill v Woodall. The claimant’s claim of want of knowledge and approval was successful and the earlier 2008 Will was admitted to probate.
This case focuses attention on the risks associated with DIY wills and reminds us that while instructing a professional will drafter may be a little more costly, it does provide considerably more peace of mind for the testator that their estate will be distributed as they desire.
If you wish to discuss anything mentioned in this article, please do not hesitate to contact our Inheritance and Trust Disputes team we would be pleased to help you.