The recent High Court decision in Elliott v Bateson provides an important reminder to Will drafters that any fundamental departure from a client's testamentary intentions must be clearly explained, carefully understood, and properly documented.
In this case, the testator had initially intended that his wife be the primary beneficiary of his estate and instructed that 50% of his estate should pass to her outright. However, his solicitor suggested replacing that gift with a life interest trust as a means of protecting assets against potential care home fees.
Following the testator's death, his wife challenged the validity of the Will and brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The Court was required to consider whether the testator understood the effect of the trust arrangement and appreciated that it represented a fundamental change to the gift. Rather than receiving an outright entitlement, the wife would only receive the income generated by the trust fund, with the capital ultimately passing to the testator's daughter.
Although the Court found that the testator had testamentary capacity and rejected allegations of undue influence, it concluded that he had not been given a sufficiently clear explanation of the consequences of the trust structure. Although a professionally prepared and duly executed Will ordinarily provides strong evidence of knowledge and approval, there was nothing in the attendance note to suggest that the life interest trust had been properly explained to the testator. The Will was also not read over to the deceased before it was signed. As a result, the Court held that he lacked the necessary knowledge and approval of that part of the Will.
Significantly, rather than setting aside the entire Will, the Court severed the trust provisions, as they were sufficiently self-contained, and gave effect to what it determined to be the testator's true intention, namely that 50% of his estate should pass outright to his wife.
This case serves as a valuable reminder of the importance of carefully explaining the implications of any fundamental changes to the structure of a Will or where there is a substantial departure from the client’s initial instruction. Solicitors should carefully explain the nature and effect of the proposed changes and make sure this explanation has been properly recorded in attendance notes and in follow-up correspondence.
