What’s in Your Will?

Posted on 10 Oct 2016

Many of us have made Wills, and that’s a good thing. But it is equally important to know and understand what’s in your Will. There are many instances where a Will is prepared by a relative, friend or even Will writer or solicitor with the contents of the Will not being properly explained to the person making the Will.

The risk is obvious: does the Will accurately reflect the wishes of the person making it?

In a case before the High Court in June, the Will of David Poole was challenged by his two brothers, Darren and Sean. David had been the unfortunate victim of a motorcycle accident in 1985 and suffered psychiatric as well as physical injuries. His compensation exceeded £1,000,000 and was managed by a Court of Protection Deputy. With the Deputy’s help, David had made various Wills over the years which had always benefitted Darren and Sean including a Will made in February 2012.

Since 1994 David had lived with Mark Everall under an adult fostering arrangement organised by Worcestershire County Council in which Mr Everall was paid for his services.
The case focused on David’s Last Will and Testament made in December 2012 which had been written by Mark Everall. It left 95% of his estate to Mr Everall and nothing to his two brothers.
His Honour Judge David Cooke decided that David had mental capacity to make his new Will in December 2012. Also, that David was not under any undue influence from Mark Everall and that the Will had been validly executed.

However, by Mark Everall’s own admission he had left David to read through the Will himself. Given David’s mental health and memory difficulties the Judge felt that, “He did not have sufficient understanding of its contents and their effect so that it can be said truly to represent his freely formed intention.” On that basis, the December 2012 Will was rejected and the February 2012 Will reinstated so that David’s brothers Darren and Sean became the beneficiaries of his estate.

The Judge pointed out, “There are cases in which knowledge and approval will be presumed, the classic one being where a Testator of full capacity has the contents of the Will read over to him by an independent solicitor immediately before he executes it.”

There is an increase in legal services being provided remotely online or by post, telephone and email. This could make more Wills susceptible to this type of challenge. Making a Will should be undertaken carefully, without cutting corners. This recent case highlights the need to have face to face specialist advice when making a Will. This is the only way to be certain that what it is in the Will accurately reflects your wishes.

By Siân Thompson – Solicitor specialising in matters of Probate Law such as Wills, Trusts & Estates. She is a court-appointed Deputy for clients under the Court of Protection and also acts as a professional trustee and attorney, as well as being STEP qualified and a full member of Solicitors for the Elderly.