Family members can help and advise relatives to write a will but there is a line which cannot be crossed without risking the resulting will being overturned.
In an article published on the 9th January 2012 in the STEP Journal “Will instigated by testator’s daughter is ruled invalid” the case of a professionally drafted will being overturned on the grounds of want of knowledge and approval is outlined.
In summary, a relative had an unacceptable level of involvement in the drafting of a new will for her Mother. When the Mother died and the will was contested the courts ruled that the will was invalid as a result. For a Will to be valid he or she must not make it as a result of the undue influence of another person.
Colin Snaith ensures that his clients are clear on what is, and is not, acceptable involvement of family members in the preparation of a relatives will. The process is much more than a simple box ticking exercise and routine instruction taking. Colin ensures that he establishes, and captures, exactly what is wanted by the testator (person for whom the will is being written).
For professional and personal will writing contact Colin on 07711 506 871.
The full article is shown below:
“Will instigated by testator’s daughter is ruled invalid - 9 January 2012
In a most unusual county court decision, a professionally drafted will that disinherited the testator’s son in favour of a daughter has been overturned on the grounds of want of knowledge and approval.
The case is Burgess v Hawes. The testator, Mrs Burgess, had two daughters, Julia and Libby, and a son Peter. In 1996 she executed a will dividing her estate among them equally. In December 2006, when she was 78, her youngest daughter Julia Hawes took her to a firm of solicitors, where instructions were given (the choice of passive verb is deliberate) for a new will that excluded the son, Peter Burgess. Julia and Peter had apparently had a quarrel the previous year.
This will was executed in January 2007. When Mrs Burgess died two years later, Peter and Libby contested the 2007 will on the grounds of lack of testamentary capacity and of want of knowledge and approval – even though it had been drafted by a solicitor.
In the Central London County Court, Judge Karen Walden-Smith accepted their claim and ruled the will invalid. She noted that there was a 23-day gap between the instruction interview and the solicitor’s writing-up of the attendance note. Moreover the note indicated that the solicitor – who was not a STEP member! – “must have taken information from the daughter and not the testatrix”.
The two claimants had also alleged that Julia Hawes had improperly taken numerous payments from their mother’s bank accounts for her own use and that of her family, during Mrs Burgess’s lifetime, and even when she was in hospital. The judge agreed and ordered that Mrs Hawes, who sits as a magistrate in Milton Keynes, must repay GBP18,000 plus interest to the estate, although she decided some of the payments were legitimate.
According to law firm Withers, the case appears to be the first time that a professionally drafted will has been overturned on the ground of want of knowledge and approval since the Court of Appeal decision in Gill v RSPCA. It is of interest to legacy officers both for the recovery of lifetime payments and for the contested probate element of the proceedings.”
