Where There is a Will (I want to be in it)

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 The problem starts when someone dies. After the collective grief subsides, thoughts turn to who is going to get what.

Old family tensions re-surface; siblings fall out, take sides and are quick to point the finger. But why does this happen more today than it has in the past?

I suspect there are two main reasons. First, we live in a more affluent society, so when someone dies there is more to fight about. Second, there are more broken marriages than at any time in our history – and even more sophisticated ways of having a relationship –  so there is, exponentially, a greater capacity for our loved ones to fall out after we have left this world.

There as many ways to leave assets in a Will as there are ways to have a relationship, probably more. One size does definitely not fit all.

I learned this very early on in my career.

A couple were married each for the second time. She had one daughter, he had six children. They lived in a council house which she managed to buy in the 1980sat a one third discount on the market value under the “right to buy scheme” with an inheritance that she received from her deceased parents. He on the other hand had never worked and had no assets at all; nor did he contribute to the purchase price or it must be said, contribute in any meaningful way to the marriage.

They made wills in the same terms. The wills were straightforward and uncomplicated. They left everything to each other on the first death and then everything to the seven children/step-children on the second death equally between them.

As it turned out, she died first.

Unlike some of our Continental neighbours, English law is not based on forced heirship. There is no recognised concept of a right to an inheritance. We are all free to leave our property in our wills as we wish (subject to some caveats, for example, relating to testamentary capacity, knowledge and approval and claims under the Inheritance (Provision for Family and Dependents) Act 1975).

After she died, her husband made a new will leaving everything he had, essentially what he inherited from her, including the house, to his own children. Not only did her daughter get nothing, she had to vacate the property. It could just as easily have been a farm or an estate.

The tale did in fact have a happy ending but not without a lot of arm twisting.

It is therefore no surprise to me that faced with similarly perceived injustice, I am often asked to advise disappointed beneficiaries (usually the children of a deceased person) whether a will can be challenged or set aside. These problems are amplified when looking at situations where the will-maker is a farmer or landowner, very often because the farmer has fixed ideas about how sons and daughters should inherit.

This is not something that a Court will easily interfere with.

Under Section 9 of the Wills Act 1837 no will is valid unless:

  1. it is in writing and signed by the testator (or some authorised person on his behalf and in his presence and by his direction); and
  2. he intended his signature to give effect to the will; and
  • he signed or acknowledged his signature in the presence of at least two witnesses who also signed the will in his presence and that of each other.

Even this simple process has, at times, required some judicial intervention.

In Ahluwalia v Singh (2011), even though there was an attestation clause reciting the presence of two witnesses when the will was signed by them and the testator in each other’s presence, it later transpired that one of the witnesses was not present when the other witness “signed”. The will was declared invalid despite the presumption that a will has been validly executed if it contains an attestation clause to the effect that Section 9 has been complied with.

In Marley v Rawlings (2014), Mr and Mrs Rawlings signed each other’s wills by mistake (intending to sign their own). The High Court and the Court of Appeal both concluded that the wills were invalid. It took the Supreme Court to say that the wills could be rectified, extending the already known grounds for rectification of wills, namely where there is a clerical error or the draftsman fails to understand the testator’s instructions (as opposed to understanding them, but failing to give effect to them, which might more appropriately give rise to an action in negligence). Perhaps not surprisingly, the solicitors’ firm was ordered to pay the wasted costs of the court proceedings.

So, faced with a valid will and a disappointed beneficiary, what else can be done to challenge the will?

The starting point is always this: if the last will can be overturned the question is was there an earlier will that will be revived? If so, does the client do any better as a beneficiary under that earlier will (or on intestacy if there was no earlier will)?

The next question, if the will is to be attacked, is whether the will was a fraud or forgery. I have had three such cases in my career. Forging a will is a very serious offence. The perpetrators in one case of my mine got eight-year custodial sentences.

Assuming we have a validly executed will can it be said that the testator lacked testamentary capacity or that it was the product of undue influence exerted by another? (This is usually someone who benefits under the questioned will or who has acted at their discretion) or can it be simply said that the deceased lacked knowledge and approval of the contents of the will.

It is beyond the scope of this article (but happily, not the author) to set out in detail what the grounds of such a challenge to a will would be. Neither is it within the scope of this article to say very much more about the Inheritance (Provision for Family and Dependents) Act 1975 save that it is an effective alternative to challenging a will because it gives some relief to spouses, children and other specified persons to ask the court to make financial provision for them where a will (or intestacy) fails to do so.

In these times, pre and post nuptial agreements are becoming more and more relevant in claims under the 1975 Act.

However, something that the modern will-maker will need to consider more and more in the future is the use of a “no contest” or forfeiture clause – or to give it the correct, and in my view, best nomenclature, the “in terrorem” clause. This is a clause designed to discourage a beneficiary from challenging the terms of a will and has been employed widely in the drafting of wills in the US. In simple terms, the clause is drawn in such a way that the named beneficiary only gets their legacy on condition that they do not challenge the will.

And that leads me nicely to share with you some of my favourite clauses in wills:

“When I die I’d like to be thrown out of a plane wearing a superman costume”

“I give £x to the Royal Society for the Protection of Cruelty to Animals”

“…and my ashes shall be handed to Susan to be scattered in the Chihuahua ring at the Three Counties Show after judging has taken place.”

And finally…….

The (still I believe) wealthiest pet the world has known is a German Shepherd called Gunther IV who inherited £90 million on the death of his father Gunther III (he was the sole heir of the German Countess Karlotta of Liebenstein who left her entire fortune of £43m to her pet dog in 1972). The portfolio now includes estates in the Bahamas, Italy and Germany.

© Miles Farren

May 2020

Contact:  Miles Farren, Ebery Williams 

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