Unexpected wills that appear after the death of an individual can cause much confusion and hurt, notwithstanding the significant delay and difficulties that come from challenging a suspected forged will. Leigh Voysey, a former private school student, was recently accused of faking the will of her former headteacher Maureen Renny, which left her Renny’s £1.65 million property. This article discusses the steps an individual can take prior to their death to protect them from falling victim to a forged will and to ensure successful succession planning.
The starting point for any successful estate plan is to undertake a comprehensive review of the individual’s current assets and liabilities. As part of the review, it is important to consider any tax implications, not only for the testator but also for the beneficiary, and any available tax reliefs and exemptions. An individual’s wishes can then be formally recorded in a will signifying their intention as to distribution and treatment of their estate post-death.
Forged wills often fail to meet the procedural requirements set out in section 9 of the Wills Act 1837, namely that for a will to be valid it must be:
- made in writing; and
- signed by the testator who intended to give effect to the will; and
- made in the presence of two witnesses who also sign to indicate their agreement of this taking place
Where there is a risk that an individual’s wishes will not be followed post-death, or there is likely to be disagreement between beneficiaries, it would be advisable for individuals to seek legal advice to ensure all procedural requirements are met from the outset. The legal practitioner should ensure that detailed attendance notes are prepared which should certainly cover the testator’s instructions, but where there is the threat of litigation it would be prudent for the legal practitioner to oversee the execution of the will too.
The ability to demonstrate a history of the testator’s wishes over a long period would help to rebut a forged will that is likely to be out of character. Although it may be indistinctive to destroy old wills, it can be useful to keep the historic documents together as evidence of the evolution of the testator’s considerations.
In the forged will case above, the commentary referred to Ms Renny’s mental capacity. When an adviser is considering testamentary capacity, the immediate thought should be to observe the test set out in the Banks v Goodfellow case which has stood the test of time following the recent Clitheroe v Bond case. A practitioner should be satisfied that the testator understands the nature of their will and its effect, has an understanding of the extent of their estate, is aware of any person or persons who would expect to be provided for under the terms of their will, and does not have a delusion of the mind. Where an adviser has any doubt over the testamentary capacity of an individual, the golden rule should be followed, and a medical opinion sought.
Where the testator anticipates disagreement over a particular asset or between potential beneficiaries, lifetime giving may well be a solution in terms of managing an individual’s succession.
A lifetime gift is the outright gift of part of an individual’s estate, for example a sum of money, to another prior to death. If it is gifted more than seven years before the individual dies, no inheritance tax (IHT) will be charged. These potentially exempt transfers will incur an IHT liability if the individual dies before the seven years have passed, although the liability may be tapered if the individual survives the gift by between three and seven years. Generally, gifts to charity or a spouse, gifts up to £250 per person per tax year, use of the £3,000 annual exemption and certain wedding gifts will be exempt. Lifetime gifts can, therefore, prove to be an effective way of guaranteeing your estate passes to specific beneficiaries and reducing the IHT liability on death.
Further options available to individuals to reduce the size of their estate for IHT purposes and undertake lifetime giving include a regular pattern of giving made from an individual’s surplus income (known as the normal expenditure out of income exemption). This exemption is often used by grandparents for the payment of school fees, however a successful claim for this exemption requires careful bookkeeping.
In addition to the significant IHT saving on death, the advantage of reducing an individual’s estate prior death is to make the estate less attractive to dishonest parties.
The use of trusts, either set up prior to death or under the terms of the will, are an effective technic to further safeguard the testator’s loved ones’ inheritance. The appointed trustees are obliged to act in accordance with the law and terms of the trust document as well as maintaining a fiduciary duty to the beneficiaries. It is important that care is taken over who is appointed as a trustee and that any letter of wishes is comprehensive and regularly reviewed to ensure that it accurately reflects the testator’s wishes.
A considered tax and estate plan is key to the successful management of the succession of an individual’s assets. Maintaining detailed records, regularly reviewing the estate plan and involving the wider family in the process, where appropriate, all help to prevent an estate from being susceptible to the fraudulent actions of others, as well as providing security and peace of mind for those involved.
By Partner James Cook and Trainee Solicitor Isobel Rudge, at Collyer Bristow.