Acting where a will proved to be invalid and potential beneficiary became incapacitated

In this case study, we were instructed to act by two adult children of the deceased who were named as Executors in the Will. At the outset it appeared to be a standard estate with a valid Will and living beneficiaries.

During the administration process, and further scrutiny of the Will, it became clear that the homemade Will had not been signed in accordance with the Wills Act 1837. It had only been witnessed by one person and this meant that it was not a valid Will, and the estate was now an intestacy.

When an estate is intestate, it means there is no valid Will, and the deceased’s estate is distributed to the closest living relative/s in accordance with the law.

Fortunately, in this case, the residuary beneficiaries named in the Will were the same people who would benefit under the rules of intestacy, the deceased’s three adult children.

There were however some cash gifts in the Will to the deceased’s grandchildren that now would not be gifted.

All three children were now responsible for making the application for Letters of Administration as the beneficiaries of the estate.

During the time when the validity of the Will was in question, one of the deceased’s children had a terrible accident leaving them in a coma. They sadly then passed away before the administration had been concluded.

Challenges

Some of the challenges to be addressed included:

1. Establishing who would inherit under an intestacy and identifying who is now responsible for making the application

2. Looking into options to see if the gifts to grandchildren could still be made

3. Establishing who will become the Court appointed deputy to act on behalf of the child in a coma (X)

4. Determining who will inherit X’s share

Solutions

1. This was a relatively straightforward process as the deceased was widowed and had three children. Once the beneficiaries are established, it is then clear who is responsible for making the application. As X was not able to be part of the proceedings, this was simply referred to in the application.

2. We discussed with the two acting personal representatives their options surrounding the gifts to the grandchildren. We advised that they could create a Deed of Variation which would allow them to alter the rules of intestacy to make these gifts. I did however advise that as there was no one who could sign for X, they could only vary their respective third shares.

We also advised that they could make the gifts themselves however they would need to mindful of any potential inheritance tax implications this would have on their estates.

They decided to simply make the gifts themselves once they had received their inheritance.

3. Before the Court of Protection Order needed in relation to X had come through, X sadly passed away. If someone survives the deceased, they have gained the interest in that estate and those funds are now form part of their estate.

We therefore contacted the family to establish if X had a Will and, if so, who the Executor/s was. X did have a Will and, again, their children were the Executors. They have now made the Grant of Probate application for X’s estate and once this is granted we can then release the amount due to them as Executors.

Impact

While the accident that affected X could not have been foreseen, this case shows the importance of having a professionally drafted and executed Will.

Most lay people do not know the intricacies of the Wills Act and therefore, when a Will is homemade, it is more likely that it is either invalid, as above, or the people named in the Will cannot benefit. This can happen when a beneficiary acts as a witness to the Will.

Within a Will you can ensure that the people you wish to benefit do benefit. It is fortunate that in this case it was the same people who benefited however this is not always the case. This can then cause family disputes and even cause litigation costing potentially thousands of pounds.