Wills

Two recent court cases have highlighted that the law can be flexible in times of need where wills are concerned.

There are many reasons to make a will, including:

  • specifying who should administer the estate
  • making gifts of money and belongings
  • making charitable gifts
  • tax efficiency
  • ensuring that the estate goes to the intended beneficiaries.

Generally, the rules regarding the making and meaning of wills are strict – primarily because the person who could clarify what they intended is no longer here to explain. However, two recent court cases have highlighted that the law can be flexible in times of need where wills are concerned.

One case involves the strange times during the Covid lockdown. At this time, people could not meet, so it was difficult to arrange for the signature of wills because the witnesses and the signatory need to be together when the will is signed. In the recent case, a claim for an estate was successfully argued on the basis of a doctrine known as 'donatio mortis causa' (DMC), which is a gift of property made by a donor in contemplation of their death within the near future.

The deceased had inherited his wife's estate, who had died a couple of weeks before him. They had both made wills in 2015. The case was brought by the beneficiaries of this will made by the deceased against a friend of the deceased who argued that he had been left the estate by text just before the deceased died. A professional will writer was involved, although he was not able to conclude a new will for the deceased due to the difficulty of finding witnesses during covid.

In the case the judge largely found for the claimant on the basis that the text was a DMC. The judge said:

'Understandably, he wanted to ensure that his donative intentions were effective. So, he resorted to a gift to take effect on death. The whole point about the doctrine of DMC is to provide a legal solution to a human need, when other legal institutions do not.'

The second case is even more unusual in that it involves an estate worth £180,000 where the will was written on the back of two food packaging boxes. The underlying facts of the case are very sad because the deceased took his own life – but he had left a note on the food packaging clearly indicating that he wanted his assets to go to the charity, Diabetes UK. The case is unusual in that the deceased's family did not contest the will, but the charity went to court for a declaration that the will was valid (the case was made somewhat more confusing because only one of the pieces of packaging contained the deceased's signature properly witnessed).

However, the court was willing to declare that the will was valid despite the unusual circumstances of its production.

These two cases demonstrate that despite the fact there are strict rules relating to the making and interpretation of wills, the courts are prepared to find in favour of the deceased's intention if it is possible to do so.

The cases are also a good reminder, however, that having a professionally drawn will is the best safeguard against ambiguity or disputes.

To discuss this or any other wills and probate matter, contact us.