Will Writers Beware – Elliott -v- Bateson
Key takeaway: Elliott v Bateson highlights the importance of clear advice and record-keeping when preparing a Will. The Court found that the Testator had not been clearly advised about the financial consequences of a life interest trust and lacked the necessary knowledge and approval in relation to its creation. The case highlights the importance of explaining Will provisions, keeping detailed attendance notes and providing written advice to help avoid future disputes.
John Osman at Mogers Drewett recently acted for the successful Claimant in a case brought against her late husband’s estate.
Rosemary Elliott brought several claims against the estate in her late husband, Mark Briant (the Testator) estate. Specifically, the claims were in relation to:
- The testator’s capacity
- The testator did not have proper knowledge and approval of the Will
- Undue influence of the testator’s wider family
- The Inheritance (Family and Dependants) Act 1975
The Testator had a long and loving relationship with Rosemary. A previous 2012 Will had left a fair division of his estate to her and his wider family. However, after a period of declining health and illness the testator initially attended hospital. It was then decided that Rosemary could not care for him at their home, so the testator initially lived with his daughter for a short period of time before moving into a care home.
Unknown to Rosemary, the Testator made a new will in May 2022 after he left hospital. The new Will was prepared by a solicitor who had significant experience in preparing Wills. The Testator initially expressed that he wished for half of his estate to be left to Rosemary. However, following a discussion upon Rosemary’s health and the potential that Mark’s estate could be used to pay for future care home fees, a dramatic change was made.
Rather than leaving the estate to Rosemary outright, a life interest trust was created over 50% of the estate, the income of which Rosemary would have access to. Unfortunately for Rosemary the income from this trust would not have generated any significant income to provide for her future needs.
The key issues before the Court, were:
- Did the testator, a 92-year-old man, with Parkinsons and in failing health clearly understand the terms of the life interest trust
- Had the will writing solicitor properly explained the life interest trust to the Testator
- The construction of the 2022 Will and whether it allowed for any capital advancement to Rosemary
The Court found that the Testator had capacity at the time the 2022 Will was made. However, it was found that the Testator had not been given a clear explanation of the financial consequences for Rosemary of the life interest trust and its construction did not allow for her to access any capital sums easily.
Specifically, it was found that the attendance note did not give sufficient detail that the Will was explained to the Testator and that the Will had been read to him. Furthermore, it was found that there were no letters of advice to the testator, before or after the Will was signed which commented on the life interest trust.
The conclusion to this was that the Court determined that the testator lacked the necessary knowledge and approval in relation to creation of the life interest trust.
The Court determined that it was not necessary to set aside the entire Will. Instead, the Court exercised its powers to vary the Will and removed the reference to the life interest trust. The effect of which, Rosemary now was given a gift of 50% of the estate.
The lessons to be noted by will writing practitioners are they need to:
- Listen carefully to their clients’ instructions
- Make detailed and clear attendance notes of the:
- Meetings where the contents of the Will are discussed
- Meetings where the Wills are signed
- Take care with drafting the Will and seek a second opinion on the operation of any clauses that could lead to future disputes
- Read the Will to their clients
- Send a letter of advice to their clients detailing the operation of the Will. This is especially relevant where there is a change of intentions or the Will or any new options are presented by the will writer.
If you have any questions, please contact Partner & Head of Disputes, John Osman using the details below.
Mogers Drewett – John Osman – Partner & Head of Department