The Answer: Any number of things.
Mr and Mrs Jones were married and owned their home together, as many married couples do, as joint tenants. Mr Jones had been violent to Mrs Jones many times over the years, before she was given the distressing news that she was terminally ill with cancer.
Mrs Jones decided not to bother to get a divorce. Her main concern was her son, Darren, by a previous relationship, to whom she wanted to leave her estate. So, she prepared a Will online, leaving her share of the house, personal belongings and some savings to a friend, Lynn, on trust for Darren until he was 21. She also appointed Lynn as Darren’s guardian.
Mrs Jones took the Will to a friendly neighbour, signed it, and asked her to witness it before taking it to meet Lynn, who also signed as the second witness. Mrs Jones left the Will with Lynn for safe-keeping, with instructions to produce it after her death and make sure that Darren inherited.
Three months later, Mrs Jones died of cancer.
What’s the problem?
There are two. Firstly, Mr and Mrs Jones owned their home as beneficial joint tenants. This means that they owned it all together. Neither owned a distinct part or proportion. Like the money in a joint bank account, upon the death of Mrs Jones, the house became the sole property of Mr Jones by operation of law. It did not form part of Mrs Jones’s estate and thus her Will could not touch it.
And, even if that were not so, the Will’s execution contained a major defect. Most people know that a Will requires two witnesses to be valid. Mrs Jones did not, in fact, have to sign her Will in front of either witness. She signed her Will in the presence of her neighbour and clearly acknowledged her signature in the presence of Lynn but, crucially, under the Wills Act 1837, she had to do either “in the presence of two or more witnesses present at the same time”. The Will is invalid.
So Mr Jones gets the house. The rest of the estate is worth less than £270,000 and, since Mrs Jones died married to Mr Jones, he inherits all of that. Darren inherits nothing. Had the estate exceeded this sum, Darren would have received half the balance.
Stuart Crippin, head of private client at Seddons comments: “One of the most important starting points when discussing a Will is the nature of a person’s assets. It is quite common for people to be a little unclear about the assets they own and, in particular, the way in which they own them. Had Mrs Jones approached us for advice in relation to her Will, we would have obtained a copy of the title register for the property at the start. That would have enabled us to identify quickly the fact that the property was owned as beneficial joint tenants and then to have discussed with Mrs Jones the need for that joint tenancy to be severed as part of the plan for achieving what she wanted.
“Of course, even once a Will has been drafted to give effect to the testator’s wishes, it must be correctly signed, dated and witnessed for it to be valid. That is why we always take great care to explain the formalities clearly and, in many cases (at least pre-COVID 19), we invite clients to come into the office to sign their Wills to ensure that everything is done properly”.
John Melville-Smith, Contentious Probate Partner responds: “All is not lost for Darren however. He has a claim under the Inheritance (Provision for Family and Dependants) Act 1975 in that the distribution of his mother’s estate under her intestacy has not made reasonable (or any) provision for him. The invalid Will has some evidential value in that the deceased’s wishes are a consideration for the Court, which will thereby be made aware that Mrs Jones wanted Darren to inherit everything. Even without that, as a minor child of the deceased, with substantial financial needs, Darren will seek an award of all or most of his mother’s estate. While there is no guarantee that this will be the ultimate outcome, it is certain that Darren will recover a substantial share of the estate. But at a cost that could have been so easily avoided”.
If you have any questions regarding the above, or need will-related advice, please contact Head of Private Client Stuart Crippin on [email protected] or 020 7725 8056, or Contentious Probate Partner John Melville-Smith on [email protected] or 020 7725 8027.