Picture this: an elderly man, in poor health, signing his last will and testament (written by his solicitor) at his nursing home. A little sad, we know. Though not particularly unusual.
But what if we told you that:
No, we’re not making it up. And yes, it does read like something out of a soap opera. But it’s true – all of it.
Kenneth Jordan made his millions from road line painting (really). Before he got married, he was in a relationship in which he had a daughter, Ruth. This relationship ended. He then got married, and had 2 more daughters. His new family apparently knew nothing about his daughter from the previous relationship. In time, his wife found out about the affair with Bernice, the marriage broke down and in 2008 they separated.
In 2010 he made a will, under which his daughter Ruth was to receive a legacy of £100,000. This same will also left £100,000 to his sister.
But some time later, Mr Jordan discovered that gifts he’d received from Bernice had been given away to charity by his wife and children, without his consent. Now he wasn’t too happy about this, as evidenced by his decision to make a new will. This new will was drafted by his solicitor, and was signed by Mr Jordan on 1 February 2012. His new will left everything to Bernice, and he passed away a few months later.
Still with us? Give yourself a pat on the back.
Unsurprisingly, Ruth wasn’t too happy about this change. So much so that she entered what’s called a ‘caveat’ at the Probate Registry. This effectively stopped probate from going ahead (that’s the process of proving that a deceased person’s will is valid, and then giving the go ahead for their estate to be dealt with).
Equally unsurprisingly, Bernice disagreed. She sought a declaration stating that the new will was indeed valid. And so the matter went to court.
… Mr Jordan was entitled to leave whatever he wanted to whomever he wanted? Not exactly, no. You’re certainly free to write your will however you wish. But if you don’t make adequate provision for close family members and dependants under your will (either by cutting them out entirely or not leaving them enough), they might be able to make a claim against your estate. Claims of this type are increasing. You can read about this in a little more detail on our page Can you disinherit family and dependants?
When reviewing the new will with him, Mr Jordan’s solicitor advised him that his wife might still be able to claim against his estate, despite being excluded from the will. But Mr Jordan confirmed he wanted everything to go to Bernice.
The court was concerned with whether Mr Jordan had testamentary capacity. In other words, the mental capacity to make a will – was he able to make decisions for himself and did he understand the implications of the contents of his new will? Read more on our testamentary capacity page.
They concluded that he did have testamentary capacity. Partly because Mr Jordan’s solicitor had known him for over 40 years, and had noticed nothing to indicate his mental health was deteriorating. In addition, Mr Jordan’s sister was due to inherit £100,000 under his previous will. But the new will didn’t leave her anything. As she was married to his solicitor, the new will meant that he (indirectly) lost out on a rather sizeable legacy.
And so the court found the new will to be valid.
That depends on your perspective, really. The new will left everything to Bernice and nothing to his wife and daughters. You might be thinking that if Mr Jordan’s decision was both informed and made independently, then that’s that. Or perhaps you’re wondering whether there isn’t something rather unfair about all this. After all, he cut his wife and children out of his will. Entirely.
But irrespective of which side of the fence you find yourself, the wider point is that you should take care when deciding what you want your will to say. Even if your will expressly excludes a close relative or dependant (as opposed to simply not mentioning them) that doesn’t mean they won’t be able to claim against your estate.
They’d have to go to court, and it’s the kind of scenario where it would depend on the particular circumstances. Of course, claims are not always successful - in a recent case a woman's unemployment was judged to be a lifestyle choice so she lost her claim against her father's estate. But often it's impossible to predict the outcome. Not quite a lottery, perhaps, but a calculated risk if you choose to leave someone out.
And how can you find information on what to consider when making your will? Why, by reading our section on What to include in a will.