The importance of a professional Will

25/06/2015

A recent Court of Appeal Case highlights the importance of making a Will. Promises made on your death bed is not a substitute!
 The recent Court of Appeal Case of King v The Chiltern Dog Rescue and others [2015] EWCA Civ 581 highlights the importance of seeking professional advice when making a Will and confirms why promises made by an individual on their death bed cannot be relied on as a substitute for making a valid Will.

In this case, the deceased had signed a valid Will in 1998 leaving her residuary estate to seven animal charities. In 2007, the deceased’s nephew came to live with her and care for her. In the months leading up to the deceased’s death in 2011, she did the following:

  1. Promised her nephew that her house would be his after her death and even handed him the title deeds.
  2. Wrote a note stating that in the event of her death she left her house to her nephew. This note was signed by the deceased and witnessed by one of her friends.
  3. Signed a Will that had been downloaded from the internet by her nephew but the deceased’s signature was not witnessed.

The nephew claimed that the above constituted what is known as a donatio mortis causa (DMC) – a gift made by an individual when they believe they are going to die imminently. As a result he claimed that the deceased had already made a gift of her house to him. The animal charities however claimed that the conditions required for a valid DMC were not satisfied and therefore the 1998 Will should be followed to include the deceased’s house within the residuary estate. The Court of Appeal overturned the initial High Court ruling in favour of the charities.

In judgement the Court of Appeal emphasised that a DMC can not to be used as a mechanism for validating invalid Wills. In this particular case, neither document described in points 2 and 3 above constituted a valid Will as they did not comply with the formalities required under section 9 of the Wills Act 1837. Such formalities are there as a safeguard and by taking advice from a solicitor, an individual can be assured that all requirements for making a valid Will are met.

This article was written by Emma Thorpe, Associate Solicitor in our Wills, Trusts, Tax and Probate team and does not constitute legal advice. This is based on the law as at June 2015. The team specialises in the areas of Court of Protection, Wills, Lasting Powers of Attorney, Trusts, Estate Planning and Probate Administration.

To find out more about their services please visit:
Wills, Tax, Trusts and Probate
Elderly Client Services

25/06/2015

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