When creating a Will it is important to seek legal advice as this ensures any loose ends are tied up, as well as making sure there is a written record to show you are aware of the decisions you are making and the implications they could have. The recent case of Lloyd v Jones highlights these factors as well as the need to appoint the right people when it comes to help in making legal decisions.
Mrs Harris was a wealthy lady whose Estate was worth approximately £600,000. She had two children – son and daughter – and lived with the son and his wife on the farm. Of her Estate of £600,000, the farm was worth £575,000.
Mrs Harris made a Will executed on 26 February 2005 leaving the farm to her son and only £10,000 to her daughter. There were a few matters which concerned the daughter about how the Will had been prepared, so she challenged it on the grounds that her mother didn't have capacity to prepare a Will and that she didn't know and approve of its contents.
The daughter had what appeared to be good reasons for challenging the Will.
Firstly her mother had dementia and her mental capacity had been declining since 2001. In addition to the dementia, she suffered from delusions, talking about, "space witches" having landed on the farm in 2002 and in 2003 that Saddam Hussein having poisoned the water supply.
Secondly, the Will had been drawn up by her cousin – a GP not a solicitor – who had collaborated with her late mother's cousin to submit an exaggerated claim for benefits (Attendance Allowance) and defraud the benefits agency and who had been treating Mrs Harris and prescribing medication contrary to GMC guidance. This cast doubt over the probity of the Will.
Finally, Mrs Harris was said to suffer badly from glaucoma, needing a magnifying glass to read, and her daughter was not sure she had approved the Will's contents because she wasn't able to read it on the day it was signed.
The daughter's case looked to be strong; professionals falsifying evidence, progressive mental incapacity, delusions – surely it would succeed?
No said the Court – whilst there were many problems with the way things had been handled, and concerns regarding Mrs Harris's health, there was insufficient evidence to suggest that the legal test for completing a Will – the Banks v Goodfellow test was not satisfied. Whilst the conduct of the professionals and some other family members was poor, when Mrs Harris completed her Will she knew:
- That she owned a farm
- That the farm was the main asset in her Estate
- That she had a son and daughter and grandchildren
- That both might be expected to be considered and receive something from her Will
It was her choice to benefit her son more than her daughter, and that was to be respected. There was a rational reason for this – it was simply that the farm couldn't be split up, and so it had to be given as a whole unit, and Mrs Harris wanted this. Mrs Harris's glaucoma had also been exaggerated so the evidence suggested she had read over the Will and approved its contents.
'Is this the right outcome? Possibly. It is unfair for the daughter, but as solicitors, it is not our role to judge our client's wishes, simply to ensure that they are enforceable. We have testamentary freedom in this country which enables people to benefit who they wish in a Will, subject to the Inheritance (Provision for Family and Dependants) Act 1975.
It is concerning however, how people try to economise by having unregulated professionals or family member/friends preparing Wills for them, when this document is so important and can then be open to challenges, which is costly and upsetting for all involved.' Lin Whitehead, Head of Private Client.
During the month of October we are taking part in the scheme Norfolk Will Help, where you can have your Will written for a suggested donation to be split equally between five charities. We can draft one of our basic Wills, and instead of our fees you will be asked to make a suggested donation of £100.00 for a single Will, and £150.00 for a couple. We have a number of appointments available through the Norfolk Will Help scheme across our offices in Norwich, North Walsham, Sheringham and Brooke.
Norfolk Will Help supports the following charities: Nelson's Journey, Age UK Norwich, The Benjamin Foundation, Norfolk and Norwich Association for the Blind (NNAB) and the Big C.
For more information on the Norfolk Will Help scheme you can go to www.norfolkwillhelp.co.uk.
If you would like further information on any of the above, contact us today to discuss your individual requirements in further detail, we would be delighted to help. Contact us on 01603 693500, email us using 'Make an enquiry' form, or during offices hours use the 'live chat' facility.