The law in England & Wales relating to deathbed gifts and charitable bequeaths was recently considered in the High Court. Here we examine the judgment and the potential impact, if any, on the law in Scotland.
Earlier this month, the High Court of England & Wales ruled in favor of a nephew whose aunt gave him the deathbed gift of a home, contrary to what was written in previous wills. In King v Dubrey  EWHC 2083 (Ch), the facts of the case are as follows:
- King claimed he was given an "uninhabitable" house in Harpenden, valued at £350,000, in the form of an invalid will in 1998. The documents were signed by his aunt, June Fairbrother, who died in 2011, and the deeds given to him after she had told him the house would be “yours when I go”.
- Previous valid wills indicated the house would be given to seven animal charities: Chiltern Dog Rescue, Blue Cross Animal Shelter, Redwings Horse Sanctuary, The Donkey Sanctuary, the International Fund for Animal Welfare, the PDSA, and the World Society for the Protection of Animals.
- Lawyers for the charities argued that King coerced his aunt into giving him the deathbed gift, on the basis of his previous conduct (he had been bankrupted twice and jailed for posturing as a company director when disqualified).
- Deputy Judge Hollander found “powerful corroborative evidence,” supporting King’s claim in the form of the invalid wills, which postdated the official will.
- The “powerful corroborative evidence” included Ms. Fairbrother’s preoccupation with her impending death and desire to have her nephew care for her three dogs and two cats. At the time of signing the invalid will, she was of mental capacity.
- Deputy Judge Hollander acknowledged Miss Fairbrother had likely intended the home to go to the seven charities, but was unable to rule in their favour due to the corroborative evidence.
What this Decision means for those making a Will in Glasgow
Although persuasive, the judgment is not binding in Scots law. In Scotland, after a will has been signed and witnessed, any later alternations made must be in the form of codicil (supplementary implement to a previous will) or a whole new will. Any alternations made by the deceased, which are not in this official form, will be subject to expensive legal proceedings, as seen in the case of King v Dubrey.
The final testamentary intention of Ms. Fairbrother was in the form of an invalid will. In Scotland, if an individual does not write a will or it is invalid, the estate falls into intestacy. If heard in the Scottish courts, the case would have been whether or not Ms. Fairbrother’s estate had fallen into intestacy because her final testamentary intention was in the form of an invalid will. If the estate had fallen into intestacy, the nephew would have been entitled to the monetary value of the home and not the property.
In many cases, the legal costs outweigh the benefits of the intended will and both parties may leave empty handed – contrary to any believed intention. It is prudent for an individual looking to bequeath gifts to a member of family, friend, or charity to contact a solicitor when drafting a will or codicil to avoid any confusion.
What are the Main Requirements of a Will?
There are only three main requirements of a will constructed by an individual of capacity: it must be written, signed, and witnessed. The language of a will expresses the wishes of a testator, yet it often leads to confusion. This is because in many circumstances they are drafted years before death and therefore subject to change. Often such changes are made without proper execution and the Scottish courts have been conservative in their interpretation of later alterations, with the effect that a will is found invalid and an estate distributed according to the law of intestacy rather than the wishes of the deceased.
Wider Legal Implications
King v Dubrey marks a substantial shift in the law of succession of England and Wales. It widens the definition of a will to now include signed postdated documents, which are not in the form of a codicil. These intentions may not be subject to official testamentary form or precatory language, which may lead to a flooding of the courts by family members, friends, or charities who believe later invalid documents in favour of them are valid.
Although it cannot be said for certain, it seems unlikely that the Scottish courts will follow this recent ruling because they take a conservative approach to the language and construction of wills.
One major difference between the drafting of English and Scottish wills is the recognition of ‘legal rights’ in Scotland. These rights prevent the disenfranchisement of a spouse and children and allows them to either elect to receive their legal rights or the rights bequeathed to them in the will. This assists in any confusion of the moveable estate – no matter the language or subsequent alteration. However, heritable rights in England & Wales, which King v Dubrey concerns itself with, are not included in Scotland and questions of property are always subject to an appraisal.
Comments and Conclusions
The facts of every deathbed gift and charitable bequeaths case is different, but as the law currently stands in Scotland, only a codicil or a new will may change a standing will. It is unlikely King v Dubrey will become a precedent; however, it does widen the interpretation of the law of succession. It is also unlikely it will affect most properly executed wills.
Wills are frequently disputed and it is undesirable of the courts to follow this decision, they will be flooded by disgruntled family members, friends, and charities. It is in the best interest of the Scottish courts to recognise but not follow this decision.
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