Absence of lawyers ’caused problems’ in DIY will dispute

The lack of lawyer involvement was part of a problem in a dispute over which document achieved a single mother’s final wishes, as reported by The Law Society Gazette.

Sitting as a judge of the High Court, His Honour Judge Berkley found Joanne Abraham’s later will did not achieve what she hoped for: “to secure the benefit of her estate for her children, apportioned to reflect their life-time gifts”.

Abraham was diagnosed with breast cancer in 2000 and passed away in February 2021 from bone cancer – leaving behind Henrietta, Tom and Simon, their younger sibling.

Simon was named as the executor of Abraham’s 2008 will, which she amended in 2019. An online template was used to create the 2019 will.

It was said in Henrietta Ingram & Anor v Simon Timothy Abraham & Anor that Joanne’s intentions were that her children would end up as equals and she was “trusting Simon to look after Tom and Henrietta rather than finalising things in the will”.

After finding that the 2008 will should be admitted to probate, the Judge said Joanne “thought that Simon would inherit her estate to distribute it as per her orally and repeatedly expressed wishes to divide it fairly’ between her children”. He added:

“A lawyer would recognise her intentions as for the creation of a discretionary trust in favour of Tom and Henrietta, with Simon as trustee to act in accordance with her stated intentions.

The formalities would have fallen rather short, but there were no lawyers involved, which is part of the problem. The 2019 will does not, of course, achieve that intention because Simon, as executor, is trustee for himself and Hilary [Simon’s wife] alone.

I find that what Jo wanted to achieve was to secure the benefit of her estate for her children, apportioned to reflect their life-time gifts, and that that benefit and apportionment was to be entrusted to Simon to implement. Clearly, the 2019 will did not achieve that.

I have little hesitation in finding that Simon and Hilary have failed to discharge the burden of proof to establish that Jo when she signed the 2019 will understood: (a) what was in the 2019 will when she signed it; and (b) (more emphatically) what its effect would be.”