In this case, the High Court confirmed that an unexpected change in the value of a testamentary gift between the execution of the will and testator’s death could not invalidate the gift or will, as it did not undermine the testator’s knowledge and approval.
The Claimant in this case was Stephen Skillett. Under Stephen’s late father’s will, he was due to receive a plot of land which, at the time the will was executed in May 2011, was valued at £50,000. Stephen’s three siblings were each due to receive cash gifts of £50,000, making all gifts originally equal in value. The residuary estate was then to be split equally between the four children. The will was made by a solicitor and their file clearly recorded that it was the deceased’s intention to split his estate equally between his children.
However, by the time of the Deceased’s death some 6 years later, the value of the plot of land due to go to Stephen had more than doubled in value to approximately £110,000.
Stephen invited the Court to propound his late father’s last will in solemn form. The Defendant, Stephen’s brother Gary, objected, claiming that their father lacked testamentary capacity and/or knowledge and approval of the will because he did not realise that the land gifted to Stephen was likely to materially increase in value. Gary’s argument rested on the idea that the Deceased had intended all of the gifts to his four children to be of equal value.
Firstly, in considering the Deceased’s testamentary capacity at the time of the making of the will, Philip Mott QC took into consideration the opinion of a single joint expert, Dr Hugh Series, who found that: “on the balance of probability, although he had a cognitive impairment which by then was probably moderate, it is entirely possible that he retained testamentary capacity. I do not think that the medical records provide evidence to suggest that he lacked it at that time.” Philip Mott QC was satisfied that the Deceased had testamentary capacity at the time he executed the will.
In considering whether the Deceased had knowledge and approval of the contents of the will, the judge found that he did, stating that: “He knew what was in his will, and approved it. The fact that its consequences following his death may not have been as he had expected them to be does not undermine that knowledge and approval”. The judge ordered that the will proceed to probate in solemn form.
While this decision is not necessarily surprising, it does highlight the importance of keeping a will under review to ensure it deals with the testator’s assets as he/she truly intends. As the judge states in his judgment, in circumstances such as these, the Courts have no power to rewrite a will, even if it would appear to be the fairest thing to do.
The issues found in Skillett v Skillett could of course have been easily avoided by careful will drafting: one way of avoiding inequality between beneficiaries is to avoid specific gifts, with all assets falling into residue and being divided equally, or making provision in the will to anticipate an asset changing in value.
As this was not a claim for professional negligence it was not for the judge to comment upon whether the professional will writer had been negligent in failing to properly reflect the deceased’s wish for his estate to be split equally in his will. However, it can be said without doubt that those who fail to properly advise their clients, or fail to draft a will that reflects their client’s intentions, may find themselves facing a professional negligence claim from a disappointed beneficiary.
The judgment can be found here.
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