Do we need more judicial discretion in disputes over wills?

For many people, making a will is one of the most important things they will ever do. They can provide comfort and instil confidence in people that their wishes will be carried out even after they are gone.

Freedom of testamentary disposition is one of the fundamental principles of English and Welsh law and, by making a valid will, everyone is free to leave their estate to whoever they wish. The requirements of a valid will are clearly set out in the Wills Act 1837 and there is a whole raft of case law to support them. The requirements laid down by the Act are neither onerous nor complicated.

Contradictory proposition

Arguments that the courts should be able to interfere with the terms of a valid will directly contradict the principle of testamentary freedom. In order to uphold this principle, the position of a will must be certain and testators must have confidence that if they leave a valid will their wishes will be set in stone.

Far too many people die without leaving a will as it is. Allowing the courts to vary, or in some cases even completely disregard, the terms of a will, would undoubtedly shake confidence. At the same time, the Wills Act must be enforced to ensure clarity and to protect a testator’s interests.

A will dispute inevitably involves several parties and all parties will require legal advice and representation. As a result, substantial costs can arise, and the court may order that these costs are met by the estate. This can significantly diminish the amount that the parties are fighting over, which can hardly be what the testator had intended. It is also difficult to reconcile with the Civil Procedure Rules’ overriding objectives to deal with cases in a way that is proportionate to the amount involved.

The recent case of Marley v Rawlings [2011] EWHC 161 (Ch) shows an attempt to circumvent the requirements of the Wills Act. Mr and Mrs Rawlings made mirror wills. They were not close to their two sons and so each decided that if the other predeceased them they wanted their estate to pass to Terry Marley, whom they treated as their adopted son.

Their solicitor and his secretary witnessed the execution of the wills but, sadly, Mr and Mrs Rawlings signed each other’s wills by mistake. Mrs Rawlings died first and the error went unnoticed until Mr Rawlings’ death.

Intention attention

Mr Marley’s claim for rectification of Mr Rawlings’ will was rejected. One of the crucial requirements of the Wills Act is that a testator must intend his signature to give effect to the will that he is signing. While it is fair to say that there is little doubt as to Mr Rawlings’ intentions, the crucial point is that those intentions were not expressed in a legally binding manner.

At first glance the decision may seem unfair. However, Mr Rawlings clearly did not intend his signature to give effect to the will that he signed (which bore his wife’s name and stated that the entire estate should be left to him).

Allowing Mr Rawlings’ will to be rectified would open the floodgates ?to claims that the requirements of the Wills Act need not apply. And then where would the courts draw the line? Would there be circumstances in which ?a will that has been incorrectly witnessed is valid?
The argument could even extend to claims that unsigned wills should be upheld. This would fly in the face of the safeguards contained in the Wills Act that are intended to prevent undue influence and fraud, to provide clarity and to protect testamentary freedom.

There are of course certain circumstances where the court rightly has certain discretions; for example, where a clerical error has been made or where a claimant has a genuine need of provision from the estate. The courts do have discretion to deal with such matters and this discretion is rightly subject to defined boundaries.

In short, it is vital that a person who makes a valid will can be certain that their wishes will be effected. Allowing the courts further discretion would lead to a greater number of will disputes which, in turn, would lead to increased costs, court time and uncertainty.

Louise Sykes is a partner at Irwin Mitchell