Legal Update: The Validity of Wills and a Reminder to Will Writers

March 8, 2022

By Patrick Murphy

In the recent case of Skillett v Skillett [2022] EWCH 233 (Ch) the Claimant asked the High Court to confirm the validity of his father’s Will so he could obtain probate. The Claimant’s brother defended the claim, arguing that his father did not have knowledge and approval of the contents of the Will at the time it was executed, so it should be declared invalid.

The Defendant argued this after discovering that he and his two sisters had been gifted £50,000 each in their father’s Will, but the Claimant had been gifted a plot of land which – whilst valued at £50,000 when the Will was executed in 2011 – was valued £110,000 at the time his father died in 2017.

The Defendant argued that his father would have wanted his children to have benefitted equally from his estate and would not have wanted one child to inherit more or less than the others, and therefore because the gift to his brother was worth more than double that of the other children’s, his father could not have sufficiently understood the provisions of his Will for it to be said that he had knowledge and approval of them. It was accepted by the Claimant that their father wanted his estate to be split equally between the children.

The Judge found that the inequality in the value gifts at the time of the father’s death did not mean that he lacked knowledge and approval of the gifts he had made in his Will, regardless of whether he would have wanted the gifts to be equal, and therefore found that the Will was valid.

This case serves as a useful reminder of how important it is that will writers explain to their clients that gifts of property may change in value after the Will has been executed, which could result in an unintended inequality in the value of the gifts which end up being distributed.

The Judge made it clear that this was not a claim for professional negligence so it was not for him to comment upon whether the solicitor which wrote the Will had been negligent in failing to properly reflect the father’s wish for his estate to be split equally in his Will. However, the mere fact that he mentioned professional negligence in his judgment and that the will writer’s alleged failings were complained about at the hearing should be taken as a warning to will writers: those who fail to properly advise their clients of such a risk and who, as a result, draft a Will which does not properly reflect their client’s intentions, may be faced with a professional negligence claim from a disappointed beneficiary.

Will writers who are found to have been negligent could then end up having to pay to the disappointed beneficiary the difference in value between the gift they received and the gift they would have received had the will writer given proper advice and properly reflected their client’s wishes in the Will.

If you are considering challenging a Will, or you are faced with a disappointed beneficiary who intends to bring a claim against you, contact Patrick Murphy today on 02920 829 122 / pmurphy@darwingray.com for a free, no obligation telephone consultation.

 

 

 

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