Making a will when you are close to death and without professional assistance is an effective means of fostering dispute between your loved ones after you are gone. As a High Court case strikingly showed, that is particularly so if you intend to leave your estate outside your immediate family.
The case concerned an exceptionally intelligent man whose life had been blighted by mental health difficulties. He was eloquent and talkative and had built his life around friendships formed with lodgers in his substantial home. His complex and difficult personality had led to estrangement from his brother and sister, although contact resumed between them in the weeks and months before his death.
He was in hospital, suffering from the brain tumour which caused his death less than two months later, when he was alleged to have made a will leaving everything he owned to a longstanding friend and confidante. His siblings, who would have inherited his estate as his next of kin had he died without making a will, launched proceedings challenging the document's validity.
The Court found that the will was duly executed. Arguments that the man was so unwell that he would have been unable to hold the pen used to sign the document were rejected. Also finding that he had the mental capacity required to make a valid will, the Court noted that treatment with steroids had at the relevant me brought a temporary improvement in his condition.
The beneficiary and one of the two witnesses to the will had in some respects acted in an underhand manner. They had provided the impetus for making the will and they had concealed what they were doing from the man's brother. There was, however, no suggestion that they had brought undue influence to bear and the Court was satisfied that the will ultimately reflected the man's true wishes.
Upholding the will's validity, the Court found that the man's intention was to benefit the group of friends that he considered his family. Although he was in the grip of progressive brain damage due to the tumour, he was able to understand and approve the simple contents of the will. The document was read to him and he probably read it through himself, as best he could, before signing it.
Gardiner v Tabet & Anr.(2020]ewhc 1471 (Ch). In another case the wishes of the deceased were not able to be fulfilled. In Davey & Anr v Bailey & Ors  EWHC 445 (Ch) a devoted couple had built up considerable wealth during their marriage. Each of them had made wills leaving everything to the other. However, the documents were about a decade old when the wife died from cancer. The grief-stricken husband later suffered a fatal heart attack and survived the wife by only about four months. The wife's estate passed to the husband in accordance with her will. After she died, he made an appointment with a solicitor with a view to making a new will. No such will was executed prior to his death, however. The wife no longer being alive to inherit his estate, the husband died intestate. The end result was that all the couple's assets passed to the husband's next of kin and the wife's family received nothing. The wife's brother and sister launched proceedings on the basis that the couple had given them substantial parts of their respective estates shortly before they died. The gifts were said to be enforceable deathbed gifts in that they had been made by the couple in contemplation of their imminent deaths. Ruling on the matter the Court noted that both husband and wife were devoted to their respective families, which were closely intertwined. The evidence indicated that it was highly likely that the couple intended that both their families should benefit substantially from their estates. In rejecting the claim, however, the Court found that the strict criteria which must be met before a deathbed gift can be legally binding had not been fulfilled. The Court expressed considerable sympathy for the wife's family, who had effectively been disinherited. However, there was nothing to prevent them receiving voluntary gifts from the husband's estate if his family chose to make them.
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