A case for testamentary freedom – Court rules that Grandfather is entitled to change Will

Mr Ward had three children, one of whom predeceased him in 2015.  In a previous version of his Will in 2011, Mr Ward left the children of his deceased son the share of his estate that their father would otherwise have received if he had survived him.  However, Mr Ward changed his Will in 2018 due to a deteriorating relationship with the grandchildren, leaving his £450,000 estate equally to his two surviving children and leaving the children of his deceased son just £50 cash each in an envelope.  The grandchildren made a claim against Mr Ward’s estate, on the basis that they should have received their father’s share and that Mr Ward’s surviving son and daughter had unduly influenced him to cut the grandchildren out.  The High Court upheld the Will, with the Judge stating that it was ‘entirely rational’ for the ‘disappointed’ Grandfather to change his Will and that there was insufficient evidence of undue influence.

People often have misconceptions about inheritance laws and may assume that the grandchildren should automatically have been entitled to their father’s share of inheritance in this case.  However, testamentary freedom applies in the UK, meaning that a testator has the freedom to leave their estate to whomever they choose in their Will, without any legal obligation to provide for a particular family member or other individual.

Care should be taken, however, when drafting Wills, as the position could be different if Section 33. of the Wills Act is overlooked. Section 33. states that if you leave a gift to your child in your Will and they die before you leaving children of their own, those children will automatically become entitled to that share, unless there is a contrary intention in the Will.  What amounts to a contrary intention has been argued in various cases, so express inclusion or exclusion is the safest option.

Whilst you cannot prevent someone from making a claim against your estate, you can take steps during your lifetime to make it less likely.  It isn’t clear from the media reports whether Mr Ward did these things but he could have:

• written a letter of wishes alongside his Will, to explain in his own words why he had changed his mind about benefiting his Grandchildren; and
• let them know during his lifetime that he had changed the Will. Often claims arise as a result of the people who have been left out of the Will feeling blindsided, at an already difficult time, and not being able to ask the testator the reasons for the change.

Mr Ward instructed a solicitor to prepare his Will on both occasions and the attendance notes of their meetings with him over the years, served as evidence in proceedings.  This case is another example of our usual reminder of the importance of using a professional when drafting your Will.

Get in touch with your usual Wealth Preservation team member or contact wealthpreservationadmin@greenwoods.co.uk if you are concerned about potential disagreements between family members after your death or are unsure about the terms of your Will and wish to review them.