Making significant changes to your Will?
Are you thinking about making significant changes to your Will or have you recently made some changes that affect the way in which your estate will be distributed after you pass away?
If you are, then it’s very important to ensure that you capture the reasons for the changes you are making or have made.
A recent case out of the Court of Appeal has given rise to a new focus on the reasoning behind your decisions when drafting a new Will. That case involved a 64 year old lady who gave her lawyer instructions to make changes to her previous Will.
The lawyer at the time found there was no reason to doubt her capacity (she appeared ‘chirpy’ to him, she had made the appointment of her own volition, she had given him written instructions as to what she wanted, she knew the size and make up of her estate, who her relatives were and who she wanted to benefit).
The changes from her previous Will were intended to give effect to her new wishes, yet the Court in this instance found that as there was no ‘adequate explanation’ for the changes from one Will to the next, the Will was set aside. This means that it is effectively invalid and the previous Will would then apply. Obviously this is of great concern because your Will only comes into effect once you have died, and by then it’s a little too late to make any changes. So you can see how important it is that any newer versions do take these matters into consideration.
Now, some of you may be thinking that this is the Court simply interfering with your right to make any decision you want to make, and you may well be right. How could they pass judgement on what your thought process was when it came to making the decisions that have been recorded in your new Will?
Having said that though, you are entitled to determine who you want to benefit and to what extent (although the normal caveats apply in certain situations such as where there is an obligation on you to provide for a beneficiary and you have neglected to do so). However, in such a case as this, if there have been significant changes from one Will to another which effectively denies a beneficiary of a greater inheritance, and that beneficiary believes you actually owed them more than what they eventually received, then they can have recourse to the Courts who may well find that there was no a sufficient enough explanation for the amended share.
There has also been much academic debate as to whether this means that every Will that has previously been drafted may be ineffective unless questions about the reasoning for changes have been asked (and to me some of the debate appears to be more for general business development purposes), but it is quite clear from the judgement that it is a factor that can be taken into account.
Personally I don’t believe it would invalidate every Will as of right but if you have made significant changes, then it may be appropriate to make sure you record the rationale in writing just to be on the safe side and file it along with your Will.
Article by Wayne Pearson | Consultant
