Whilst the percentage of people writing their own Wills has decreased in recent years, the range of online resources that invites people to write their own ‘DIY Will’ remains widely accessible.
The recent case of Ingram and Whitfield v Abraham [2023] highlights the dangers associated with the DIY method and factors which may cause the validity of a Will to be challenged.
Ingram and Whitfield v Abraham [2023]: A summary and the court’s findings
In Ingram and Whitfield v Abraham [2023] two children sought to challenge the validity of their late mother’s Will, made in 2019 which named her brother as the main beneficiary of her estate with the only other gift being her book collection to her sister-in-law. The Will made no provision for her children who had been the only beneficiaries in her previous Will made in 2008.
As there was such a difference between the two wills, the court had to consider the circumstances which prompted the deceased to disinherit her children in 2019.
It became clear that the deceased had asked her brother to assist her in drafting a new Will and that he used an online template. The brother testified to the court that his sister’s definitive instructions (both orally and in text/email exchanges) were that she wished for him to receive her entire estate and that on finalising the Will, they had reviewed this together before she finally approved and executed it in the presence of her lodger and neighbour as her two witnesses.
In its judgment, the court noted a number of factors that gave rise to suspicion.
The brother refused to provide evidence, when invited to do so by the court, of all of the text messages and emails with his sister discussing her Will.
At no point did the brother email or send a draft of the Will to his sister for review before it was signed.
When the witnesses to the Will recounted its signing, their evidence was inconsistent when asked how long they were with the deceased and where they were at the point when it was signed.
The deceased’s name had been typed incorrectly more than once in the Will and if she had read it through thoroughly as her brother suggested, she would have likely noticed this and asked him to prepare an amended version.
The court determined that in the circumstances the 2019 Will was invalid due to a lack of knowledge and approval on the mother’s part and that her estate would therefore be distributed under the terms of the 2008 Will. It concluded that the deceased had not intended to disinherit her children in 2019 but rather to ensure that her brother, as executor and trustee, would divide her estate equally between her two children. The brother was seen by the court as having taken an active role in misleading his sister as to the effect of the Will he had prepared for her.
The legal test for ‘knowledge and approval’ of a Will
One of the legal requirements for a valid Will is that the testator must know and approve of its contents.
The test established in the case of Gill v Woodall [2010] remains the leading precedent for assessing knowledge and approval. In short, the testator must understand the content of their Will and the effects of its terms at the point when they sign it.
If a Will has been professionally drafted it is much more likely that anyone seeking to prove the will would be able to establish that the deceased knew and approved of the contents. The professional would have advised on the terms of the Will and its effects and to check their understanding before it is finally signed. This is of tantamount importance when the person making the Will is blind, illiterate or English is not their first language as they would then have to rely on someone else to read out and explain the Will to them.
A reflection on making ‘DIY Wills’
The law does not prevent someone from writing their own Will and a person may choose to do so if they feel that this is the quickest and cheaper option. There is however a greater risk of the Will being deemed invalid after their death, either because it has been incorrectly executed, or because there is reason to be believe that the testator did not fully understand the effect of its terms, or had been coerced by a third party.
Whilst the fees charged by a professional Will drafter will invariably exceed the cost of purchasing a DIY Will kit, this does give considerably more peace of mind that to the testator that their estate will be distributed as they desire. The drafter has a duty to their client to ensure that the terms of the Will accurately reflect the testator’s wishes and a contemporaneous note will normally be made of the instructions which the testator has given and the reasons for departure from any previous Wills. The professional should also satisfy themselves that the testator knows and approves of the contents of the Will, has the requisite capacity to make a Will and is acting under their own free will in addition to ensuring that it is correctly executed. A professionally drafted Will can therefore be viewed as an investment, particularly when measured against the time and costs of litigation.
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If you are considering making a Will or updating your existing Will, our committed Private Client department would be happy to assist and can be contacted at PrivateClient@rfblegal.co.uk.
Additional Info
- News Author:Katharine Whittingham
Katharine Whittingham
Associate Solicitor
