News & events

06/03/2012 - When is a will not a will?

The widow of a successful racehorse owner and businessman, David Allcott, recently appealed to the Court of Appeal for a larger share of her late husband’s multi-million pound estate.

Mr Allcott died suddenly in 2006. Shortly before his death he had made a new will leaving all of his assets, except £25,000, to his wife of 13 years, Annemarie. But his will was declared invalid as it had not been executed (signed and witnessed) correctly. This meant that his assets had to instead be distributed under an earlier valid will, which did not make the same level of provision for Mrs Allcott and probably also did not reflect Mr Allcott’s wishes at the time when he died.

Anyone making a will or codicil should be alert to the fact that there is a specific procedure for executing these documents which if not followed can render them invalid. This procedure is outlined in Section 9 of the Wills Act 1837 and generally requires the testator (person making the will) to either sign the will (or attest that it is their signature) in front of two witnesses who are also present at the same time. It may sound fairly straightforward, but mistakes do happen. For example, there was a recent, well-reported case where a married couple had accidently signed each other’s wills before they died. These were held by the Court of Appeal to be invalid.

So what did Mrs Allcott do? Where a will fails to make ‘reasonable financial provision’ for a spouse, they can apply to court for a larger share of their spouses estate under the Inheritance Provision for Family and Dependants Act 1975. Mrs Allcott did just that and was awarded the matrimonial home (a £2.5 million farmhouse) and cash totaling around £3.7 million. However, Mrs Allcott’s had previously enjoyed a very high standard of living. So, she is currently challenging the award, arguing that one of her husbands assets had been incorrectly valued (for more than it was worth) during proceedings and also that the lump sum received did not allow her sufficient funds to maintain her lifestyle.

Some of the grounds appeal have been dismissed, but the issue of the valuation is still to be determined. Had Mr Allcott executed the will following the correct procedure, both his wife’s claim and appeal may have been avoided, saving substantial legal costs and avoiding delays to the administration of the estate?

Two key points arise from Mrs Allcott’s claim:

1. When making a will always familiarise yourself with the above S. 9 procedure before you execute the document. Wherever possible, most solicitors will offer you the opportunity to sign the document in their presence. If that is not possible, they should provide you with detailed instructions as to the correct way in which to execute the document.
2. If you have not received ‘reasonable financial provision’ from a spouses or civil partner’s estate you should consider whether or not it would be appropriate to pursue a claim under the 1975 Act. If you are thinking about either bringing or defending such a claim you should always seek specialist legal advice

If you would like further information please email Victoria Jones or call 01202 786152.

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Victoria Jones (show profile)

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