The right way to deal with a will

By Jonathan Goldberg, April 7, 2011
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A disputed will can be a source of real anguish to families

A disputed will can be a source of real anguish to families

Heather from Glasgow writes: My elder brother died recently in his early sixties, after a long illness. He was a successful author and academic, and his books sell well. One is the leading textbook in its field. He spent much of his life teaching in American universities, but he came back to die in the UK and never renounced his British citizenship.

He rarely visited our elderly parents, probably because he had rebelled as a youngster against their traditional Orthodox lifestyle. Nonetheless he provided for my mother in recent years after our father suffered business reverses and then died. I have a letter which he wrote to me a few months ago in anticipation of his death, assuring me in formal terms that he was setting aside £250,000 in trust in his will to continue to provide an income for my mother afterwards.

His second marriage is to a much younger woman who survives him with their two young daughters. She has her own successful career, and I judge her to be in a good financial position in life. She has just rung to inform me that the monthly allowance to my mother is now ceasing, that his will left everything to her and her children, and that there is no trust in favour of my mother as his letter to me had promised. The situation is especially difficult because I do not want to appear suspicious of her, or risk alienating my mother still further from her grandchildren. What can I do?

Heather, I sympathise with your dilemma. Facts such as these, where money and family relationships conflict, are notoriously explosive fuel for legal disputes. You will need to tread carefully.

In order to be valid, a will must adhere to very strict legal formalities

The first thing to point out is that a will is a public document. This means that once it has been admitted to probate, any person can request a copy of it by supplying the name and date of death and last known address of the deceased person, and paying a modest fee to the Probate Registry. All this can be done online (www.hmcourts-service.gov.uk).

You will then learn precisely what your brother's will did provide - if indeed he made a valid will at all.

Let us first assume that he did, and that there was a trust provision in favour of your mother, contrary to what your sister-in-law has told you. Clearly your mother would then be entitled to demand the benefit, and if they failed to honour it, the executors would be in serious trouble. This seems unlikely however, for that very reason. Let us therefore assume instead that your brother failed to rewrite his will as he had promised in his letter, perhaps because his illness overcame him. I regret to advise that the letter then has no legal validity of itself. It cannot overtake the terms of the will.

Even today many people fail to realise that in order to be valid, a will must adhere to very strict legal formalities. It must be in writing, the testator must be of sound mind and acting voluntarily, and, above all, it must be signed by him in the presence of two witnesses, who must sign after him. Neither witness (or the spouse thereof) can inherit under the will. If these formalities are not strictly observed, the purported will is invalid, and the estate will pass under the rules of intestacy. That means in broadest outline that the surviving spouse will inherit a life interest, after which the estate is divided between the surviving children.

Clearly none of this is going to assist your mother. There is one final possible route. Under the Inheritance Act of 1975, your mother could apply to the Court to alter the terms of the will or intestacy, in light of the fact that your brother was supporting her financially before he died. His letter could then be used as powerful evidence of his benevolent intentions towards her.

The power of the Court would be to make "reasonable financial provision" for your mother. This would mean in practice, I think, ordering a reasonable living allowance for the rest of her life.

If matters were to go so far, you would need to consult a specialist solicitor. But there is always the hope that your sister-in-law may first be persuaded to avoid the costs and stress of litigation by agreeing to vary the terms of the will voluntarily, by a deed of family arrangement.

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC is a leading London barrister. Visit www.goldbergqc.com

    Last updated: 12:03pm, April 7 2011