Do I need a lawyer to change my Will?

22nd August 2023

Once you have a Will in place it is important to keep it under review. Circumstances can change over the years, in particular events like births, deaths, marriages and divorce could prompt you to re-consider your wishes. We recommend that you review your Will every 3-5 years in any event, as the law (especially tax legislation) could change since your Will was drafted and this may impact whether it is still fit for purpose. Do you need a lawyer to change your Will though?

A warning

It can be tempting to make changes to your Will without seeking legal advice, particularly where you only want a small amendment. However, the recent case of Ingram v Abraham (as executor of the estate of Jo Louise Abraham (Deceased)) and another [2023] EWHC 1982 (Ch) has highlighted the dangers of doing so.

Joanne Abraham (‘Jo’) died in February 2021, leaving two adult children, Henrietta and Tom, (‘the Claimants’) and two siblings – her brothers, Simon and Nicholas. Jo was first diagnosed with cancer in 2000 and again in 2017.

Jo signed her first Will in 2008, splitting her assets equally between her two children. She updated this in 2019, signing a second Will which had been drafted by Simon. Under the Will he inherited the whole of her residuary estate, with the only other gift being her book collection to Nicholas. There was no dispute around the validity of the Will, which was signed and witnessed at home, and it was agreed that the signature was Jo’s. There were, however, questions around the initials marked at the bottom of each page and it was suggested by the Claimants that these differed from Jo’s usual initialling.

The claim

The Claimants brought the claim on the basis of their mother’s lack of knowledge and approval of the contents of the Will. Evidence showed that Jo had a long-held intention to leave everything for the benefit of her children. At a family gathering three weeks before the new Will was prepared, Jo had repeated this intention.  She had also mentioned Simon sharing her assets fairly between her children after she died.

In his defence, Simon said Jo had called him when he was driving one day and explained what she would like in the new Will. He downloaded a template from the internet and prepared the Will. He emailed and posted a copy to Jo. Simon also claims that he telephoned Jo after drafting the Will, but this was strongly disputed by the Claimants. He said on the day of signing, Jo read the Will and had it read to her. He argued that this was simply a case of Jo changing her mind, alleging that she had found Henrietta ungrateful when gifting her money during her lifetime and had an argument with Tom over Christmas 2018, which had caused her to re-think her wishes.

The judgment

The court found in favour of the Claimants, believing Jo had intended to leave everything to her children.  It was decided that on balance she had probably believed she was appointing Simon as her executor and that he would receive her estate for the purpose of his then distributing it to her children in accordance with her stated wishes. It was the court’s view that she did not understand that she was actually leaving her assets to Simon for his own benefit. As a result, the 2008 Will was to be submitted to probate.

In his Judgment, His Honour Judge Berkley stated that a lack of involvement from lawyers contributed to the dispute. He observed that had lawyers been involved, they would have recognised Jo’s intentions and accurately expressed these by setting up a trust in favour of her children, with Simon appointed to act as Trustee. The absence of legal knowledge contributed to the misunderstandings and confusion that resulted in the claim.

Using a lawyer to change your Will

As this case has shown, it is important to take legal advice before making any changes to your Will, no matter how small the change may be. Hand written amendments on an original Will are invalid, unless the whole Will is re-executed with all the formalities of the original will-signing. This should ideally be done at the end of the document and expressly refer to the amendments.  Even where the amendments are made before the Will is signed, if your writing is unclear or it cannot be proven that you made the changes before execution, they will be invalid and the original wording will stand – which may not be what you want.

For small and simple amendments, it may not always be necessary to prepare a new Will. It is possible to prepare a codicil, which is a supplementary document setting out the changes you are making. This is not always the best solution and a solicitor can advise you on the most appropriate way to amend your Will.

A solicitor can also ensure that your intentions are clear and that you understand what will happen after you die. Blake Morgan’s Succession and Tax team has experts who can assist you.

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