Estate Dispute Resolved: Court Validates Will Destruction
Estate Dispute Resolved: Court Validates Will Destruction
On 15th November 2024, Judgment was handed down in our client’s favour, finding that her sister had capacity when she decided to rip up her will. The case has attracted national news coverage.
Our client, Josephine Oakley, found herself having to defend an application brought by distant family members who argued that her older sister, Carry, did not have capacity to revoke her will and that she had unduly influenced Carry.
The will would have seen the Claimants appointed as executors and receive 50% of Carry’s estate, with the remaining 50% shared between other distant relatives. If, however, the Court decided that Carry had capacity, her entire estate would pass to Josephine under the rules of intestacy.
The background to this case is that Carry had instructed Mrs. Hafwen Webb, her long standing solicitor to make her a new will removing all mention of the Claimants. Instructions were first given in November 2021 but due to various circumstances, Mrs. Webb was only able to see Carry the following January, at which point Carry was seriously unwell in hospital. Mrs. Webb, having already established the severity of Carry’s condition, went to the hospital prepared, if necessary, to hand write a death bed will and brought along Carry’s existing will.
Mrs. Webb’s evidence, which became the focus of much of the trial, was that she found Carry to have capacity at the point that they discussed the provisions of her existing will and that Carry was clear that she did not want the Claimants to receive any benefit.
Carry was advised that she could immediately revoke her current will by tearing it up, with the intention of revocation. This is known as revocation by destruction and is set out at Section 20 of the Wills Act 1837:
No will …….. shall be revoked otherwise than as aforesaid,……….or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.
She was advised that she would be intestate and that Josephine would inherit her entire estate. Carry confirmed she understood and that she wanted to go ahead. Mrs. Webb handed over her will and Carry ripped ¾ of the way through but was physically unable to complete the tear. Mrs. Webb noticed this and offered to assist. Carry nodded her agreement and Mrs. Webb placed her hands on Carry’s and helped her with the remaining 2.5cm of the will.
Having revoked her will Carry said that her father would be pleased, or words to that effect.
Mrs. Webb then attempted to take instructions for the new will but noticed that Carry was becoming sleepy and slightly confused. At this point she decided that Carry could no longer provide instructions and ended the appointment.
The next day Mrs. Webb wrote to Carry confirming that she was now intestate and that her whole estate would pass to Josephine. She offered to attend the hospital again to draft a new will.
Carry’s health did not improve and a few weeks later she passed away, having not instructed Mrs. Webb to return. Following Carry’s death, Josephine attempted to administer her sister’s estate, at which point this dispute commenced.
The question for the Court was whether Carry had testamentary capacity to revoke her will. The test is the same as that for the capacity to make a will – set down in the case of Banks v Goodfellow (1870).
As well as arguing she lacked capacity, the Claimants also argued that because Mrs. Webb assisted Carry to tear the last few centimetres of the will, there was no evidence that she had the necessary intention to revoke it. They suggested she may have simply ‘acquiesced’.
A leading expert in adult psychiatry was instructed to provide a report on the issue of capacity. The expert concluded that it was more likely than not that Carry was suffering delirium for some time on either side of the day the will was destroyed. The expert therefore concluded that it was more likely than not that Carry did not have capacity when the will was destroyed.
The judge, Deputy Master Linwood sat over three days hearing evidence from the parties.
On the second day of the trial the Claimants withdrew their allegation of undue influence. The case came down to whether Carry had capacity when she revoked her will.
During the lull between the trial and the judgment being handed down the case received widespread national coverage with such headlines as ‘Disgusted! 92-year-old-sparks £800K inheritance row after ripping up will on deathbed’ (GB News) and ‘Stubborn’ woman, 92, RIPS UP will on her deathbed leaving family locked in bitter row over £800K inheritance’ (The Sun).
In his judgment, Deputy Master Linwood found that Carry had the necessary capacity, that she intended to revoke her will and understood that by doing so she would be leaving her entire estate to Josephine. He found that Mrs. Webb assisted Carry to complete the revocation, having obtained her authority for such assistance – rather than simply acquiescing.
In submissions, the Judge was reminded that the decision as to validity of a will (or revocation) on grounds of capacity is a decision for the Court and is not to be delegated to experts.
Whilst Mrs. Webb did not comply with the ‘Golden Rule’ by obtaining medical evidence of a person’s capacity, this is not a hard and fast requirement, but rather a best practice approach. Circumstances do not always allow for the ‘rule’ to be followed and the opinion of a highly qualified and experienced solicitor, who knows the person making the will, carries significant weight regarding the issue of capacity.
Josephine never asked to be her sister’s beneficiary, but it was clear from Mrs. Webb’s evidence that the knowledge that Carry’s estate would pass to her sister brought her some peace in the last weeks of her life.
It has been our pleasure to represent Josephine in the run up to the trial and to get her, and Carry, the result they deserve.
Josephine was represented by Michael Brierley a partner in our will disputes team. He instructed Christopher Jones of St. Johns Chambers, Bristol.
To read the national press coverage prior to judgment, please click on the below links:
https://www.thesun.co.uk/news/31248935/family-court-battle-will-ripped-up-inheritance
https://www.gbnews.com/news/inheritance-row-woman-ripped-will-deathbed
https://www.mirror.co.uk/news/uk-news/family-fighting-over-womans-800000-34076804
If you are involved in a dispute about a Will or estate, whether as a beneficiary, executor, or family member, our specialist team can help. Please visit our specialist website Everys Will Disputes or call 01392 477983 for a free initial assessment or email ewd@everys.co.uk.