A will with unintended consequences?
13th October 2022 by Rob Kelly
A High Court judgment has highlighted what may be seen as a peril of making a will which includes assets whose value may fluctuate over time.
The case concerned a dispute between two brothers who were each beneficiaries of their late father’s (testator’s) will. The will provided for one brother (the claimant) to inherit a plot of land (valued at the time the will was made at £50,000), and for the testator’s other three children to inherit £50,000 each. The residue was to be divided among the four children in equal shares.
The will was prepared by an experienced solicitor whose file recorded that it was the late father’s intention to split his estate equally between his children.
The plot of land rose in value to £110,000 by the time of his death and one of his children challenged the will on the grounds that the testator didn’t know and approve the contents of the will (because it produced inequality among the children which the testator did not intend so that he could not have understood it) and/or that he lacked capacity to make the will.
The judge was satisfied that the testator had testamentary capacity when he executed his will and found that a later change in circumstances (such as a change in value of an asset disposed of by the will) does not undermine the testator’s knowledge and approval, even where that leads to unintended consequences.
The judge also found that the testator knew what was in his will and approved it.
The challenges to the will failed.
The value of assets disposed of by a will can go up, or down, over time and this decision highlights the importance not just of considering how assets should be divided in order to achieve the outcome that is desired, but also of keeping the terms of a will under review. As the judge in this case stated, the court cannot rewrite a valid will to better reflect what the court thinks a testator might have wanted if they could save foreseen the situation at their death.
If you would like to discuss a contentious will issue you have, please contact Rob on 01202 377871 or email r.kelly@laceyssolicitors.co.uk.
Rob Kelly
Senior Associate Solicitor — Dispute Resolution
Direct dial: 01202 377871
-
“Rob Kelly has been absolutely exceptional in resolving this litigation and so thorough in everything and basically gave the opposition a masterclass of his work that he is so good at.”
-
“I have had the pleasure of working with several members of the team at Laceys regularly over a period of years. I found Rob Kelly in particular, who worked on a successful litigation case for me over a period of several years to be outstanding in all aspects of the work he undertook, and the manner in which he did it. I now consider him a friend. I would not - and have not - hesitated to recommend Laceys to my family and friends, and continue to use them for all legal matters.”
-
“ I just wanted to thank you for your great work on the professional negligence case and other cases you have represented Indian Ocean and Tiien through the last few years.”
-
“A case that was initially very straightforward became difficult and, for me, very frustrating. Rob Kelly's calm, lucid and very professional advice and planning were invaluable and led to a good outcome.”
-
“Their Fee Management was exemplary and the expertise provided by Rob was exactly what we required.”
-
“I've worked with a fair few lawyers over the years and Rob Kelly is the most on the ball and efficient lawyers I've ever come across. I'm looking forward to working together for many years to come.”
Rob practices in two main, complimentary areas of work – contentious wills, probate and trust disputes, and property disputes.
Contentious wills, probate and trusts
More than half of Rob’s time is spent dealing with the contentious aspects of wills, probate and trusts, an area in which he has practiced continuously for over 20 years. He advises and acts in disputes relating to wills and inheritance, trusts, the duties of trustees and personal representatives, and the administration of estate.
Rob’s practice embraces:
- Personal representative and trustee disputes (including personal representative and trustee disagreements, removals / substitutions and alleged misconduct)
- Disappointed beneficiary claims
- Will disputes (where the validity of a will is challenged on the grounds of undue influence, lack of testamentary capacity, lack of knowledge and approval of the contents of a will, and fraudulent calumny)
- Financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975
- Proprietary estoppel claims
- Disputes about the proper construction, and rectification, of wills
- Caveats
- Professional liability claims arising from the preparation of wills and trusts and the administration of estates
He has mediated (either as appointed mediator or as a representative) dozens of disputes involving contentious wills and probate issues.
Property disputes
The other side of Rob’s practice is contentious property work. This embraces:
- Residential and commercial landlord and tenant disputes
- Disrepairs
- Repairing covenants
- Possession claims
- Lease termination and lease forfeiture
- Dilapidations
- Service charge disputes
- Interpretation and enforcement of leasehold covenants
Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.
Rob is a Solicitor. He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme in June 2006 and is a member of the Civil Mediation Council.
Related articles
Vespero. Scotland’s first ‘tequila’ launched – but there’s a sour twist…
Many of us remember the Tequila song, assuring us that tequila makes us happy (at least until...
The 5 most common causes of Wills disputes
Over recent years, the courts have reported an increase in cases brought after a dispute has arisen...