The recent case of Elliott v Bateson demonstrates the court’s power to strike out provisions in a will where they have not been adequately explained to a testator.
Background
Mark and his wife, Rosemary, were married in 2011. Both had children from previous marriages.
By 2022, Mark, then aged 92 and in poor health, had sold his property and moved in with his daughter, Vanessa. His estate consisted of “cash or similar” of just under £250,000.
Mark instructed “an experienced solicitor” to prepare a new will. Mark’s intention (as recorded in a typed note) was to divide his estate as to 50% for Rosemary and 50% for Vanessa and her family.
Rosemary had been diagnosed with dementia and, at the time the instructions were given, it was anticipated that she would need to move into a residential care home. The solicitor therefore recommended a life interest trust rather than an outright gift, in the hope of safeguarding Mark’s estate for the eventual benefit of Vanessa. The solicitor assured Mark that Rosemary would still have “access to the funds”.
The new will
Under the terms of his new will, 50% of Mark’s estate was held on a life interest trust for Rosemary, with the capital passing to Vanessa on Rosemary’s death. The remaining 50% was divided outright between Vanessa and her family.
Crucially, however, the will contained no express power enabling the trustees to advance capital to Rosemary.
Rosemary’s claims
Following Mark’s death, Rosemary (through her son acting as litigation friend) brought the following claims:
The will was invalid because Mark “did not know and approve its contents” or “alternatively that it was procured by undue influence”
“Under the Inheritance (Provision for Family and Dependants) Act 1975… the 2022 will failed to make reasonable financial provision for her”*
(*Although Mark had been diagnosed with Parkinson’s disease some years earlier, it was not alleged that he lacked testamentary capacity at the time his will was executed.)
The court’s decision
The court in its judgment thought it significant that “the idea for the change in provision for Rosemary came from [the solicitor] and not Mark” and was described as “radically different” to what Mark had originally proposed in his note. “Given Mark’s frailty and inexperience… it was necessary for [the solicitor] to carefully explain to Mark the implications of this fundamental change.”
The court found that, although the solicitor had given assurances concerning Rosemary’s access to capital, he had failed to clearly explain to Mark that, in the absence of an express power in his will, she would be reliant upon “Vanessa’s bounty in giving away some of her own putative inheritance”.
There was also no evidence of “any discussion above the level of income that the trust fund would have generated” and whether this would be sufficient to meet Rosemary’s needs. The court distinguished this from a life interest in a property, where the life tenant would “have the entire benefit of the trust fund whilst willing and able to live in it, without the need to provide for a power of appointment.”
It was also not clear that Mark had actually read through the will himself, or had it read over to him, before it was signed.
The court concluded that the effect of trust provisions had not been sufficiently “explored or explained” by the solicitor. The relevant wording was therefore struck out of the will for lack of knowledge and approval, with the result that 50% of Mark’s estate passed to Rosemary outright.
Rosemary’s separate claim on the grounds of undue influence failed. The court also held that the provision for Rosemary resulting from the deletion of the trust wording was reasonable, meaning that it was not necessary to consider the alternative claim under the 1975 Act.
Key takeaway
This case provides an important reminder for practitioners of the need to give full and clear advice to clients when preparing their wills.
Life interest trusts can be useful estate-planning tools, particularly for blended families, but the implications of incorporating such a trust into a will need to be fully understood. Where the life tenant may require access to capital, the will needs to be drafted carefully and the effect of the trust provisions clearly explained to the client.
If you would like advice on ensuring your will accurately reflects your wishes, including the use of trusts, please contact our private client team.
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