Death-bed wills: a cautionary tale

A very sad item was reported in the days before Christmas.

A brother and sister were in court over a disputed “deathbed” will, the former claiming that the latter had been disinherited by a new will made in the last few days before their mother’s death. The validity of the new will was challenged by the sister.

The case went against the brother – a decision reached nearly two years ago now. At the end of the trial, the court found that the brother had “simulated” his mother’s signature on the later will.

A little more detail

The story of the case is truly tragic – on a personal level it’s a catalogue of illness, mistrust, family antagonism and hostility; and on a practical level it’s an object lesson in estate planning and the cost, emotionally and financially, of getting things wrong. And who would care to be an object lesson in that?

To start with – and to finish with – there was conflicting evidence as to whether the mother had signed the will, in whose presence, and who had signed as witnesses. The recollections of people at the main trial were of varying reliability and credibility – some of which is to be expected when you consider that they were talking about events three years previously.

Added to that, there was more than a hint of attempting to persuade a witness to follow a particular story.

Finally, and perhaps most sadly, was the comment of the judge to the effect that the brother had been motivated by a “sense of entitlement” born of his closer relationship to his mother and his more attentive care of her in her illness. When families go to law, there are bound to be scars.

Nearly 21 months later, the Court Appeal upheld the judge’s decision – on an appeal which was based largely on questions of fairness in the proceedings, not on the facts of the case. The net result is that the legal costs of the proceedings – which will fall to the brother – are almost double the total size of the estate. If you remember Bleak House, you’ll catch the echoes of Jarndyce v Jarndyce.

What really happened?

It may never be known for sure whether the mother did, as the son claimed, intend to disinherit her daughter. If so, there were some essential steps that would have had to be taken.

Obviously you can’t sign a will for someone else – unless they’re blind or illiterate (and, even then, you wouldn’t be signing in their name.) Even if someone thinks they’re following the wishes of the testator, they can’t do that.

The need for witnesses to be independent, willing and competent is obvious – but think about what that means. In this case, the nurse who witnessed the will didn’t know what the document was – and would not have witnessed it if she had known. Now, a witness is only a witness to a signature, and technically they don’t have to know what the document is; but if they’ve asked and are misled, that might throw their independence and willingness into question.

What’s more, you can’t simply disinherit a family member and expect that to be the end of it. As the judge pointed out, even if the later will had been valid, the daughter would have succeeded in an action for provision to be made to her out of the estate: there’s an Act of Parliament which makes that possible.

Think of it like this: if you died without a will, your nearest family members would take the estate in proportions set out by the Act. If you really planned to use your will to disinherit someone who would fall into that category, you need to be very thorough. The law doesn’t like it when families and dependants are cut out of inheritance unless there is very good reason.

At the end of this sorry tale are various people, none of whom, we suspect, is much the happier for the experience – including those caught up innocently in the quarrel. Uncertainty and disagreement over an estate which might have gone some way to making life better for several people has left at least one of them destitute.

We can’t imagine that the fractures in the family relationship are readily capable of healing. Neither can we imagine that the mother – whomever she intended to benefit – would have been satisfied at where things have ended up.

Plan, plan, plan

It really does make sense to plan your estate, to be clear with those whom you expect to leave behind after your death, and to do things properly.

So take a look at the guidance on Simplify the Law:

More on wills

and see how using our free will can help.

Create a will

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