Many wills are made by persons who are terminally ill; nothing emphasises the need to put one’s affairs in order more than the imminence of death. And solicitors have a duty to act promptly, before it's too late, writing out a will or codicil at the bedside for immediate execution, if necessary, but without losing sight of the need to ensure that the terminally ill client has capacity to sign.
Death-bed marriages - most usually to a long-term partner - are similarly common, so as to be able to claim the Inheritance tax spouse exemption.
Death-bed wills have always carried a high risk of litigation- a mixture of the circumstances, the frailty of the testator and the fact that persons who expected to inherit see their entitlement whipped away at the last minute. Two cases decided in the last few weeks highlight the sort of issues encountered.
The first is Wharton v Bancroft and Others . Millionaire, George Wharton (78) had lived with Maureen (63) for 32 years. When diagnosed with cancer, his tax advisers suggested marrying Maureen; he said he wouldn’t think of marrying again unless he knew he was close to death.
When he left hospital, to allow him to die at home, he made a will in expectation of his marriage to Maureen and, later that day, he married her at home. His will left everything to Maureen and excluded his three daughters who would have inherited everything had he died unmarried and intestate.
The three daughters challenged the will on the basis of Maureen’s “undue influence”, but their challenge failed. The Court determined that their father was a man who knew what he was doing, why he was doing it and what he wanted to do. The court felt unable to infer anything untoward in a man wishing solely to benefit his partner of 32 years, his wife in all but law.
The second case is Barrett v Bem , decided in early February. On his deathbed, Martin Lavin was unable to sign a will in favour of his sister, Anne, because, as a result of his illness, his hand shook too much. Anne placed her hand over his and helped him write his name.
Section 9 of the Wills Act requires a valid will to be signed by the testator or by someone else “at his direction”. The Court of Appeal found that while Martin had wanted to sign a will in favour of Anne, he’d not signed it himself, nor given clear “direction” to sign it on his behalf. She had effectively and unilaterally stepped in to guide his hand, therefore the will was invalid.
Lord Justice Lewison said “the mere facts that Martin wanted to make a will and had tried and failed to sign it personally are insufficient to amount to a direction to Anne to sign the will on his behalf ... In my judgment some positive communication is required in order to amount to a valid direction."
For advice or more information on these issues, contact Jim Sawer.