Making a legally binding Will is the only way you can be assured that your estate, i.e. your money, property, investments and other assets and possessions, will be distributed in the way you wish them to be after your death. If you do not ensure that the document is legally enforceable and do not update it as and when necessary, it may unfortunately come to pass that your estate’s future does not align with your wishes.

A recent High Court disputed probate case, Naylor & Another v Barlow & Others, proved illustrative of the above fact and has particular relevance to Wills dispute cases involving siblings and businesses, particularly farms.

Overview

The claim concerned two adult children who lost out on their share of a farming partnership because of their obliviousness to a condition in their grandfather’s Will.

Mr Hines, the owner of the family farm, died in 1992 leaving a Will in which he bequeathed equal shares of the family farm to his wife and two of his four children, John and Philip. However, this arrangement was contingent on one condition: that the two brothers would each have to pay £15,000 to their brother Basil and sister Beryl within nine months; in the event that they did not make this payment within the specified deadline, their shares in the family farm would automatically pass to Basil and Beryl.

One of the two brothers, John, who had been left a share in the farm, failed to make the conditional gifts to his siblings, so thereby lost his interest in the farm on 4 October 1992. However, his brother Philip predeceased their father by two years so was therefore incapable of making the conditional gift.

The Complication

The children of the deceased brother, Judith and Janet, instructed a contested probate solicitor to take the case to court, arguing that they were entitled to inherit their share in the farm without making any payment as they had been unaware of the obligation implicit in the nine-month condition.

The Decision

The judge hearing the case ruled that the intentions of the testator, Mr Hines, had been unambiguous; the two brothers could only inherit their share of the farm if they met the conditions of the £15,000 gifts to their siblings within the specified nine-month period.

Furthermore, he confirmed that as the issue of the deceased beneficiary, his children were subject to the same conditions of the Will and were therefore not entitled to inherit.

The Court’s View of Testamentary Freedom

The judge’s position on the issue of testamentary freedom was clear, ruling that when a testator evidently intends a gift to be subject to a condition and the law holds that the gift should be passed to the beneficiary’s issue, to avoid the effect of the lapse of principle in the event of the named beneficiary predeceasing the testator, the law under Section 33(3) of the Wills Act 1987 provides that the substituted gift should be subject to the same conditions the parent would have been subject to.

The judge held, “It would be an excessive, intrusive and unwarranted interference with the principle of testamentary freedom and autonomy for the court to construe s.33 so to permit the issue of the deceased beneficiary of a testamentary gift to take free from any condition that attached to that gift in the hands of their deceased parent.”

In other words, the beneficiary’s children took on their father’s obligations after his death for all purposes and it is not the court’s prerogative to alter the testator’s conditions of a gift.

Avoiding Disputed Probate

The case serves to further underline the need for carefully drafted and legally enforceable Wills and, especially, the necessity of updating a Will to account for any significant change in a testator’s circumstances, in the case of Mr Hines this being the death of a named beneficiary in his Will.

It is almost certain that if Mr Hines had redrafted his Will following the death of his son Philip, the expense and acrimony of taking a contested probate case through the courts could and would have been avoided.

Furthermore, the ruling highlighted that the ignorance of a beneficiary – even one who is the issue of the original, named beneficiary – to a condition in a Will cannot be considered as an excuse for any failure to meet the details of the said condition.

This confirms the position reached in Hodges’ Legacy (1873) (LR 16 Eq. 92) that “a legatee is not entitled to notice of the condition unless the terms of the condition expressly provide that an interested party is to give him notice thereof”.

However, in useful guidance to Wills solicitors and testators in the future, the judgment suggests that when writing similar conditions into Wills, the compliance deadline should begin from the date of notification rather than the date of death.