In an attempt to highlight some of the things that a person who does not, on a day-to-day basis, deal with Wills and Will-writing, may not realise, we will, in the next few blogs, be talking about some contested Wills, and the circumstances and the judgements of these cases.
The first case highlights the enormous importance of formalities of the execution and attestation of a Will and how they can lead to contentious proceedings. We look at the case of Sherrington v Sherrington
Sherrington v Sherrington [2005] EWCA Civ 326, Peter Gibson, Waller and Neuberger LJJ
Richard Sherrington was a solicitor who, not only ran his own legal practice, but owned a second and also ran a successful loan business. He had been married to Gloria until the breakdown of their marriage in 1995. He had three children; Daliah, Donna and Ramon. His divource from Gloria came in 1999, in the same year he married Yvonne.
‘She only married me for my money.’ Richard Sherrington told his friends of his second wife as, before too long, Yvonne and Richard were constantly arguing.
Richard preferred to go away on holiday with his son rather than with Yvonne, he wanted a quiet life – he didn’t get that with Yvonne. On 7 September 2001, however, perhaps to rekindle their romance, Richard and Yvonne had booked a trip to France. Just hours before they left, they both signed reciprocal Wills, each leaving his or her entire estate to the other. When questioned later, Yvonne gave their reasons for this as:
- Neither wished the survivor to be dependent on the other’s children
- Inheritance tax on the first death would be avoided
- If the deceased died first, the shares in his company would remain in single ownership and would not require sale or discontinuance of the business.
Many would feel the same as Richard and Yvonne, even with much less than a £10m estate at stake, but, hastily signed and hastily written, the Wills – prepared by his step-daughter, Nathalie – were full of errors. Did Richard really mean to exclude his children entirely from his Will?
The Signing of the Will
After Nathalie (who, although a plant ecologist, had taken a job with one of Richard’s law firms) had finished drafting the Wills for her mother and step-father, she was driven to Richard’s other office by Mr and Mrs Butt. Mr Butt was a friend and sometime chauffeur for Richard and Mrs Butt was a teacher. By the time they arrived at the North London office it was 6.30pm. Time was tight; Richard and Yvonne’s plane left from Luton at 9.
Richard signed his Will on each of its three pages; Mrs Butt and Mr Thakkar (an office cleaner whose primary language was Gujarati and who had limited English) signed as witnesses. The process took only a few minutes before Yvonne and Richard raced to the airport.
Luckily, they made their plane.
Unluckily, however, the following month, on 30 October 2001, Richard was killed in a car accident; He was 56.
The Court Case
As Executor to Richard’s Will, a Grant of Probate was given to Yvonne on 10 May 2002.
One year later on 2 May 2003, Richard’s first wife, Gloria, and his son, Ramon, issued proceedings under the Inheritance (Provision for Family and Dependents) Act 1975 (I(PFD)A 1975). In order to be successful, however, they would have needed to have issued proceedings within six months of the grant of probate and they were too late. Under Section 4 of the I(PFD)A 1975 the court is able to grant permission to bring proceedings albeit out of time, and Ramon wished to continue with this. In the meantime, however, on 2 July 2003, Richard’s daughters Daliah and Donna brought separate proceedings. They claimed that, not only had the will not been executed in accordance with section 9(d)(i) of the Wills Act 1837 as the witnesses had signed the Will before Richard had signed, but, that neither had Richard known or approved the contents of his Will. Because of this challenge, the I(PFD)A 1975 Act proceedings were put aside until the outcome of this second challenge.
At the trial the claimants, Daliah and Donna, added a further ground which extended their first, which was that, even if the witnesses did sign the Will after Richard had signed it, they definitely did not sign with the intention of attesting his signature on the Will. (Neither witness remembered seeing Richard sign his Will and neither recalled understanding that what they had put their signature against was, indeed, Richard’s last Will and Testament.)
If the claimants were successful, it would mean that Richard died intestate, and the children from Richard’s first marriage would automatically become beneficiaries under the Intestacy Rules.
The judge, Lightman J on 13 July 2004, after analysing the evidence given by (among others) Yvonne, Mrs Butt and Mr Thakkar concluded that Richard had not signed his Will in the presence of the two witnesses and, as such, the Will was not validly executed. Further, due to the harried circumstances, the judge believed that Richard had not correctly read his Will and therefore did not have the required knowledge and approval of its contents.
Concessions and Appeal
Now with the second challenge dealt with, Gloria and Ramon continued with their claim undet the I(PFD)A 1975. In March 2006, however, Yvonne made two concessions regarding trusts in Richard’s estate and, in doing so, the judge looking at the I(PFD)A 1975 claim found that, although he would have extended the time period of the claim, now, neither Gloria nor Ramon had a good claim against the estate as, due to the concessions made by Yvonne, ‘reasonable financial provision’ had been made for both of them.
Yvonne then appealed the judgement on the second claim.
At the appeal the three judges disagreed with the High Court judge on Richard’s knowledge and approval of his Will. They said that it is to be assumed that Richard did know what he was signing. He was an experienced solicitor and his Will was not complex but rather ‘short and simple’. Further, Richard had kept his Will in his possession after its execution and therefore had ample opportunity to read it and have it re-drafted had he not have been happy with its contents.
Regarding the attestation of the witnesses, the appellant judges held that, if a person has the capacity to make a Will, it should be taken that this person did what the attestation clause, his signature and the signatures of the witnesses imply, that is, that he signed in the presence of the witnesses and they, in turn, signed in his presence. In the absence of the ‘strongest evidence’ to the contrary the intention of the witnesses to attest is inferred from the presence of a) the testator’s signature on the will, b) the attestation clause, and, c) the signature of the witnesses underneath that clause.
The judges found in favour of Yvonne.
Heartache, Worry and Legal Fees
So, what can we learn from this?
- If a person wishes to make their Will, it is best – if circumstances allow, of course – to take time to have the Will prepared correctly and in accordance with their wishes.
- If a person has a family from a previous relationship, then, this family may have a claim to the estate under the I(PFD)A 1975. Inclusion of this family in the Will to allow for reasonable financial provision should be made to prevent such a claim.
- Last but not least, the formalities of the signing and witnessing of a Will are of vital importance. Any departure from the correct procedure might make the Will invalid so adherence to these formalities must be kept and witnesses must be chosen who are able to a) understand the process, and, b) be able to give evidence regarding this attestation several years later.
To ensure all three of these points are carried out correctly the most favoured way forward is to instruct a professional. Their fee will never be more than the fees for litigation and all the associated heartache and worry should a claim be made against the Will.
So, did you know that the fomalities for signing and witnessing your Will were so important? Or do you believe the case of Sherrington v Sherrington should never have come to court? What is your opinion? We’d like to hear what you have to say so, please leave us a comment to let us know.
Further, if you need any help with preparing your Will, please contact us on: 020 8920 3360 or email us at: info@twb.org.uk. Alternatively, you can visit our website: http://www.twb.org.uk.
We look forward to hearing from you.
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