“To him that will, waies are not wanting.”
George Herbert (1593-1633)
You’ll be familiar with the saying ‘where there is a will, there is a way’, which is itself a revision from Herbert’s collection of proverbs, Jacula Prudentum (1640).
As solicitors, we impress on our clients the importance of succession planning. This includes making, validly executing, and then maintaining your will.
The High Court in Birmingham recently considered a case where the deceased had made several wills over the years, cutting in and out various family members leading to questions as to his testamentary capacity.
Stanley separated from his wife, Agnes, in the 1980s and moved in with his partner, Kathleen. In 2010, Stanley and Kathleen made wills leaving their share of their home to her daughter, Diane, and his son, Martin.
Kathleen died in 2014. Stanley gave the deeds to Diane.
A few weeks later, Stanley changed his will to cut out Diane in favour of Agnes and their children: Ronald, Jennifer, and Martin.
In 2017, Martin was cut out. In 2018, he was cut back in.
Agnes died in 2019.
By 2020, Martin was cut out again. This will was made during lockdown and witnessed through a car window.
Stanley died three months later.
Diane, having been given the deeds in 2014, objected to the 2020 will.
Judge Tindal, sitting as a High Court Judge, noted that:
“…at a human level, it is about the impact of a deceased testator leaving his affairs in a sadly messy state and whether that was due to his diagnosis of dementia or – as I will find – his capacious, if harsh, decisions.”
The solicitor who drafted the 2020 will and the witnesses to it gave evidence. At this point, Diane withdrew her objection, and it was agreed that she would get her half-share in the home along with a payment from Stanley’s estate. Given the circumstances that led up to this resolution, the judge determined to give written reasons.
“…looking at the wills from 2010 onwards individually; and standing back and considering them together in the light of all the evidence, including his medical notes and the diagnosis of dementia, I find Stanley had testamentary capacity from the 2010 will corresponding to Kathleen’s then, to his final 2020 will, disinheriting Martin once again.”
On the formalities surrounding the execution of the 2020 will, the witnesses came to the driveway of Stanley’s home. They saw him sign through the car window before the document was passed to them to sign. This was a valid execution:
“Stanley was plainly very familiar and happy with it – after all, he had plenty of practice with wills.”
The Law Commission is due to publish a supplementary consultation paper on the law of wills in September 2023.