03/06/2013

Beware of taking instructions with a beneficiary of the will present

It may sound obvious, however a solicitor in the case of Julia Hawes v Elizabeth Burgess & Anor (2013) made some fatal mistakes when preparing a will for an elderly testator which resulted in a successful claim against the validity of it on the basis that the testator lacked knowledge and approval, a decision which was later upheld by the Court of Appeal.

The case of Julia Hawes v Elizabeth Burgess & Anor (2013) highlights the need for will drafters to exercise caution when talking instructions to ensure that the testator ultimately knows and approves the contents of the will. The testator in this case was an 80 year old widow with 3 children; Julia, Peter and Libby. The testator’s previous will (1996) left her estate to be split between her 3 children in equal shares. However, her last will (2007) excluded her son Peter, leaving everything to be divided between Julia and Libby in equal shares.

In finding that the testator lacked the necessary knowledge and approval, the Judge at First Instance attached weight to the following key factors:

1. the solicitor taking instructions for the will had failed to see the testator alone at the time instructions were taken, nor at the time of execution, instead allowing her daughter Julia, a beneficiary standing to gain by the provisions of the new will, to be present throughout;

2. having taken instructions, the solicitor failed to send the testator the draft will to read and check in advance of the appointment at which she later executed the will; and

3. the solicitor accepted information from the testator’s daughter which later turned out to be incorrect, leading to mistakes in the will which were not picked up by the testator.

As well as reminding will writers of the importance of seeing testators alone, ensuring instructions come from them and giving them chance to consider a draft will in advance of execution, Hawes v Burgess & Anor (2013) helpfully reaffirmed that Banks v Goodfellow is still good law when considering testamentary capacity.

For information please contact a member of our Private client dispute team for any issues regarding challenging a will, trust or estate.