We enjoy many freedoms in the UK, such as the freedom of expression, freedom of thought, conscience and religion, and freedom of assembly and association are all conferred by the Human Rights Act 1998. Another is ‘testamentary freedom’, meaning that every individual is free to decide how their estate is distributed after their death.
In perhaps one of the oldest and most cited cases used for establishing if a testator had sufficient capacity when drafting their Will, Banks v Goodfellow,  5 LR QB 549, on the subject of testamentary freedom, Justice Cockburn stated, "English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of the general law." What Justice Cockburn states so eloquently is that while they may not always get things right, individuals are the best judges of how their property should be treated after they die.
How to ensure your Will is faithfully carried out
Given we are afforded the gift of making our own decisions when it comes to drafting a Will, assuming we have testamentary capacity, i.e. we understand the implications of the decisions we are making, it is imperative that your final wishes are honoured. Many assume because they have a Will, their preferences will be faithfully carried out, but this may not be so.
Unfortunately, many factors may prevent your Will from being fulfilled as you wish, including if the Will is:
· not filed / stored safely and is therefore lost
· not accompanied with proof of your testamentary capacity
· not drafted according to your wishes
· contains errors or omissions
· not updated based on your most recent life circumstances
· invalid due to undue influence
In addition, according to section 9 of the Wills Act 1837, “No will shall be valid unless:
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”
Because there are so many factors which may interfere with our testamentary wishes being carried out after death, that seeking the guidance of a professional Wills Solicitor is invaluable.
Their experience and expertise removes the need for guesswork on your part, and ensures that when you sign the Will, you are doing so in the confidence it will fulfil its intended function.
What can happen if your testamentary freedom is questioned?
A recent High Court decision has highlighted how the Courts rule in cases whereby testamentary capacity is questioned by a family member following the death of the testator. In Ian Parsonage (acting as personal representative in the estate of Beryl Parsonage (deceased)) v Duncan Parsonage, Tomas Parsonage, Sian Folley, Alison Taylor EWHC 2362 (Ch), the testator, who had two sons and two daughters, made amendments to her Will in 2011 to divide her estate equally between the four siblings. The Will previously gave the Claimant the entirety of his Mother’s house. The Claimant made the case that his mother had dementia at the time the Will was changed, and therefore the previous version should be deemed valid and effective. As part of his reasoning, the claimant explained that his mother had given his two sisters financial assistance (in the form of cashflow help rather than lifetime gifts) when purchasing a property, but not him, therefore he should be entitled to a greater share of the estate.
His Honour Judge Simon Barker QC considered that the testator had passed all three tests for capacity at the time of changing her Will in 2011; namely that she understood the nature and effect of the Will, the extent of the estate to be divided, and the nature and extent of claims on her. He was also satisfied that based evidence from the Solicitor, medical records, witnesses to the Will’s signing, and a covering letter she wrote, that the testator’s dementia had not impaired her testamentary capacity.
The case of Beryl Parsonage highlights the importance of engaging the services of a Will writing Solicitor. It was the scrutiny and attention to proper process by the Solicitor that ensured that when the Will was challenged in the High Court, many years after being written, the testator was not deprived of her testamentary freedom. The beneficiaries of Ms Parsonage’s Will received what their mother had intended to provide.
The freedom to do as you wish with your property and assets is a fundamental right under English law. By making sound choices now regarding your Will, you can ensure this right is not challenged when you are no longer here to defend it.
If you would like help with any aspect of Wills, Estate Planning, Power of Attorney, or any other matter, please contact us on 01202 802 807 to make an initial appointment with one of our expert Solicitors, Alexandra Livesey or Paul Solomons.