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Signing a Will could not be simpler – or could it?

The recent case involving retired British Airways Captain Chris Burgess, 65, and his sisters, Jennifer Penny, 69, and Catherine Kennard, 55, reveals the dangers that lie in wait for the unwary when preparing and executing a Will.

Their father, former Judge Jim Burgess, had decided that his son did not need the money as much as his daughters, thanks to his well-paid career.  Jim altered his will in 2012 to leave his son a 20% share of the estate, while leaving 40% to each of his daughters.  Jim’s wife, Freda, made a mirror Will at the same time. Jim told Chris about the change at a football match, explaining that his sisters were not as financially secure as him.

The dangers of the home made Will

Jim died aged 88 in 2012 and his assets passed to his wife. Freda suffered a bad fall in January 2013 and 9 days later she asked her son to shred her 2012 Will and draw up a new one for her, splitting the estate equally. Chris obliged.

Jennifer and Catherine argued the 2013 Will had not been properly witnessed as one of its witnesses did not see Freda sign it. The sisters also asserted that their mother, who died in 2016 aged 90, was too frail to understand the terms of the 2013 Will and had not received independent legal advice.

The Court accepted the terms of the 2013 Will were exactly what Freda had wanted and that she had genuinely revoked the unequal 2012 Will by having it shredded. However, the 2013 Will was not valid since one of the witnesses had not seen Freda sign it.

The decision means Freda died intestate (without having made a valid Will).  Her estate will be divided equally between all three children in accordance with the intestacy rules as she wished, albeit this was more by luck than judgement.

What are the requirements to execute a valid Will?

There are strict rules as to how a Will should be executed set out in the Wills Act 1837.  These include that the signature of the person making the Will must be witnessed by two independent adults, neither of whom can be a beneficiary, in the presence of the testator. 

Costly consequences

If a Will has not been properly executed then it will be invalid. In these circumstances, it would be necessary to consider whether any earlier Will applies, or whether like Freda, their estate would pass in accordance with the intestacy rules.  Frequently, such cases will turn on the evidence of the witnesses who were in attendance when the Will was signed and their credibility.

Failing to execute a Will properly can have serious implications. Not only do you risk leaving your family with a financial and emotional dispute to resolve at a time of grief, but (unlike the very fortunate result in Freda’s case) your final wishes would not be respected. Your legacy could be eaten away by legal bills or unnecessary tax, rather than providing financial security for your loved ones. If you find yourself in the difficult position of having to challenge or defend the validity of a Will, call our Wills and Probate Dispute specialist, Rebecca Neale, on 01902 577716.