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Mutual wills trump deathbed wishes, High Court finds

17 August 2010

A hairdresser who became the sole beneficiary of an elderly woman’s estate at the eleventh hour is expected to have to repay more than £300,000 because of a “remarkable” error in drafting the original will, the High Court has ruled.

Judge Jonathan Gaunt QC held that a lawyer’s failure to explicitly state the nature of a reciprocal will made by two elderly sisters 15 years earlier was to blame for the confusion over beneficiaries.

Ethel Wilson later changed her will twice: once in 2003 and a second time two months before her death in 2006, bequeathing her estate to her hairdresser and next-door neighbour, Jill Fraser, as thanks for assistance in her dying days.

It replaced the reciprocal will drafted by a legal executive at Harold Bell & Co in 1991, a Surrey solicitors’ firm where Ethel had worked for a number of years as a receptionist.

The two wills ensured the estate of the predeceased would pass to the living sister, to be distributed among 15 joint beneficiaries on her subsequent death.

Assessing claims that the two sisters had intended the wills to be mirror wills, the judge said: “If the two sisters told many of their friends and relations about their agreement and if, as Mr Last [Ethel’s financial adviser] said Ethel told him they had, they told their solicitor, it is remarkable that he did not include any recital of it in the wills he drafted for them or make any other record of it.”

He added: “I think it was the plain duty of any solicitor… faced with two sisters wishing to make reciprocal wills, to ascertain their intentions as to revocation, to advise as to the effect of making mutual wills, and to ensure that any agreement the testatrices wished to make was clearly and accurately recorded.

But the judge said there was “considerable and consistent evidence from close friends and relatives of the sisters that the wills had been made subject to an agreement”, adding: “In the light of all this, what happened in 2003 is rather puzzling. Ethel altered her will. She did not go back to Harold Bell & Co for whom she had previously worked and who drafted the 1991 wills, but to a different firm of solicitors, Brett-Holt, probably because they had an office in Stoneleigh and were closer.”

Suspecting Ethel was suffering from memory loss, Surrey solicitor Richard James Sudweeks, of Brett-Holt, sought the advice of a consultant psychiatrist. The doctor concluded that Ethel was possibly suffering from ‘mild dementia’ but was fit to make a will.

It was the second time his firm had been asked to change the will, following another request in 2003 on the advice of financial adviser Colin Last, who Ethel had appointed following Mabel’s death, and who was then added to the list of beneficiaries. Mr Last was later written out of the will.

The judge accepted: “A court has to approach oral evidence of the kind that was given by and on behalf of the claimants in this case warily and with appropriate scepticism,” adding: “I bear in mind the inherent improbability of a testator being prepared to give up the possibility of changing his or her will in the future.”

However, he ruled that there had been an agreement between the two sisters that, on the death of one of them, her estate would pass to the other, that their cumulated estates would then be passed to the 15 named beneficiaries on the death of the survivor, and that the wills were not to be altered after the death of the first sister.

The judge refused to declare the 2003 and 2006 wills invalid and has asked the parties to make a submission as to an appropriate order. It is expected that Jill Fraser will be ordered to pay over the estate, which she is now regarded as holding on trust, to the surviving 1991 beneficiaries.

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