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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 one of our Inheritance Disputes experts.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.