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The Risks of a DIY Will

Royal National Institute for Deaf People and others v Turner [2015] EWHC 3301

Four charities have won a legal dispute over the right to share a £1.8 million inheritance in a case that highlights the need for proper legal advice when drafting a Will.

Summary

The High Court has ruled in the favour of four charities (“the Charities”), the residuary beneficiaries under a will dated 21 October 1982 (“the 1982 Will”) who challenged the validity of a later homemade will alleged to have been executed on 1 November 1999 (“the 1999 Will”).

The Charities argued;

(1) the will was not executed in accordance with section 9 of the Wills Act 1837; and

(2) want of knowledge and approval.

Facts

Dorothy Whelan, who died in 2012, had signed a mirrored Will along with her husband in 1982 which left her estate to charities including Marie Curie Cancer Care, the Royal National Institutes for Deaf and Blind People and the Royal Institute of Cancer Research.

Alan Turner, the son of Hazel Turner, claimed that Whelen made a second will in 1999 in which she pledged to bequeath her home, Tiltyard Cottage near Hampton Court Palace, to his 95-year-old mother, the “friend who had never let her down”.

Comment

Knowledge and approval

In order to validly execute a will, a testator must have knowledge and approval of the contents.  Claims arise when the circumstance surrounding the making of a Will appear suspicious.

Aspects of the Will were suspicious as it was a homemade will that was prepared by the principal beneficiary. There was no evidence that it was read over to the deceased and it was not properly attested.

However, these features were set against the fact that there was no doubt that the deceased had signed the 1999 Will, there was clear evidence of the deceased’s intentions and the beneficiary was a life long friend of the deceased.

On weighing up these factors, Judge Behrens determined that the deceased did know and approve the contents of the 1999 Will.

Section 9(3) Wills Act 1837

In order for a will to be valid, the testator must sign the document in the presence of two witnesses who must attest to the signature and sign the will themselves. The two purported witnesses for the 1999 Will asserted that the deceased had not been present when they attested the Will. Richard Wilson, counsel for the charities, argued that the witnesses “believed on the basis of what they were told by Hazel Turner that they were witnessing her Will, not that of Dorothy Whelen”.

Finally, the evidence led to the relatively clear conclusion that on the balance of probabilities it was more likely that the 1982 Will was lost rather than destroyed by the deceased with the intention of revoking it.

Conclusion

The charities had discharged the burden and the 1982 Will would be admitted to probate. The Will signed in 1999 had not been properly created and that the earlier 1982 Will, in favour of the charities, should stand. The case highlights the dangers of DIY wills and emphasizes the risks that can occur when such an important document isn’t validly created.

For advice on contentious trusts and estates, please contact either Helen Freely or Rachel Diedrich.

This briefing was posted on 13 January 2016.

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