In this blog we discuss the case of Skillett v Skillett [2022] EWHC 233 (Ch) and how a change in the value of land between the execution of a will and death does not invalidate a will on the grounds of knowledge and approval.
The Court was invited to propound the father’s will, which was executed on 19 May 2011, by the Claimant. The Defendant, his brother, objected on the basis that their father lacked testamentary capacity and/or did not have knowledge and approval at the time when the will was executed in that the father did not realise at the time of execution that the land gifted to one of the children was likely to increase before his death. The Defendant represented himself throughout the Court proceedings.
The Deceased, and his wife, had four children. In 1972, the Deceased purchased a smallholding, which was described with a marketing appraisal value (rather than a formal valuation) of around £50,000 shortly before the Deceased, and his wife, made a new will in May 2011. Prior to making his will, the Deceased had developed Parkinson’s disease. After executing his will, the Deceased’s medical records show that he was formally diagnosed with Alzheimer’s disease in 2013, with him moving to live in nursing home where he stayed until his death in 2017 at the age of 84. His wife died a month earlier.
In May 2011, the Deceased (and his wife) executed new ‘mirror’ wills were executed providing that on the death of the first spouse, the surviving spouse would receive everything, but on the death of the surviving spouse the smallholding was gifted to the Claimant, with the other three children to receive a lump sum of £50,000 each. The residuary estate was then to be split equally between four children. The will was made with a solicitor and the evidence clearly showed that the Deceased intended to split his estate equally between his children. By the date of the Deceased’s death, the value of the land had increased from £50,000 to around £110,000. The Defendant suggested it was worth a considerable amount more than this.
On the issue of testamentary capacity, the Court indicated that it may have been advisable for the solicitor to have requested a medical report due to the Deceased’s age and medical condition, which may have helped avoid the litigation. No direct medical evidence was called by the parties. Nor did the Court hear from the Deceased’s GP, or other medical professionals who had seen the Deceased in the years before the will was made. The Court appointed medical expert also held, on a balance of probabilities, that the Deceased’s impairment of cognitive function was not sufficient to have undermined his capacity at the time of making the 2011 Will. The Court was therefore satisfied that on all the evidence the Deceased had testamentary capacity.
The Defendant’s secondary argument surrounded the inequality of testamentary provisions and that if his father had had the effects of his will properly explained to him, he would never have approved the will or its contents. The inequality of testamentary provisions did not appear to exist as at the date of the will, but as at the date of death. Nor was it likely the equality would last very long. Whilst it seemed to be common ground that the father would not have wanted this to happen, the will was not complex, and he had given specific instructions to his solicitor on what was to be included. It may have been that the Deceased looked at the Claimant’s offer to buy the land in 2010 as crystallising the value, even though the payment would be deferred until death; that the Deceased loved the land, and would have been distraught at not being able to visit it anymore, and wanted to value the Claimant’s willingness to maintain it, and for him to arrange visits to it; Deceased could have thought his death would come quite soon; or that he overlooked the probability of an increase in the value of the land, or that it had not been brought to his attention by his solicitor or any member of the family.
However, the Court formed the view that the lack of mathematical equality at the time of death does nothing to undermine the rationality of the provisions which the solicitor was instructed to incorporate at the time of making the will. An oversight, or a change in circumstance following the making of a will would not be enough to invalidate a will. In all the circumstances, the Court held that the Deceased had testamentary capacity, that his will faithfully reflects his (and his wife’s) joint instructions, and changes since the will cannot invalidate that. The Deceased knew what was in the will and approved the contents. It may have been that the Deceased looked at the Claimant’s offer to buy the land in 2010 as crystallising the value, even though the payment would be deferred until death; that the Deceased loved the land, and would have been distraught at not being able to visit it anymore, and wanted to value the Claimant’s willingness to maintain it, and for him to arrange visits to it; Deceased could have thought his death would come quite soon; or that he overlooked the probability of an increase in the value of the land, or that it had not been brought to his attention by his solicitor or any member of the family.
One way to avoid this happening is to stop specific gifts from being included within the will, so that if you want an equal share of the estate then these would fall into the residuary estate to be divided equally, rather than to run the risk of this issue happening again. Equally, if all siblings are in agreement situation could be avoided with a deed of variation. The Court seemed sympathetic to the Defendant’s plight in this case and made reference to un-pleaded issues, which it could not deal with, including rectification of the will; undue influence; and/or a claim for professional negligence against the solicitor who prepared and made the will.
