Case study: contention over the gift of a property in a Will settled

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Our contentious probate solicitors were recently involved in an interesting case regarding the validity of a Will that was drafted by a former Partner (Ms T) of Barcan+Kirby.

The case involved the Testator (Mr B), his son as the Claimant party (Mr D), and his daughter as the first Defendant (Ms C). The second Defendant (Mrs H) was a personal representative but adopted a neutral position at trial.

The dispute lay in Ms C’s belief that a Trust established by her father’s Will, which included a gift of a property to Mr D, failed in its construction and was therefore invalid. Ms C believed that the property fell into the residuary estate and, consequently, should be split 50/50 between both children. The Claimant disputed this and believed the Will was correct, the Trust was valid, and that he was to be gifted the property.

Inclusion of discretionary Trusts in Will

Mr B had his own business and, with the success of the company, was able to purchase several properties. After meeting with accountants to discuss inheritance tax planning, Mr B transferred a number of the properties and land to a newly formed company, to be held in separate Trusts. The potential beneficiaries were Mr D, Ms C, and any respective children of theirs.

In 2011, Mr B was diagnosed with dementia and, three years later, instructed Ms T at Barcan+Kirby to write a new Will, which was to include a discretionary Trust over the remaining property. Ms T drafted the Will and visited Mr B when he executed it in 2015. Mr B retained capacity despite his illness, which was backed up by evidence and, as a result, there were no grounds to challenge the validity of his Will.

Mr B’s wife died in 2016, and he passed away in 2018.

The Will

Mr B’s Will stated that:

  • Mrs H would be the sole Executor and Trustee.
  • The property would be held in Trust for the lifetime of Mr B’s wife and then, on her death, would go to Mr D.
  • The residue of Mr B’s estate would be split between Mr D and Ms C equally.

The dispute over the Will related to the construction of the clause dealing with the Trust of the property and centred on whether that clause failed. If the clause failed, the property would fall into and form part of the residuary estate to be shared equally between his children.

Ms C claimed that the clause in the Will failed because of Mr B’s wife’s passing, that it was incorrectly written, and/or that the ambiguity of her father’s intentions should mean that the property should fall into the residuary estate and be shared between her and her brother, Mr D.

Looking at the evidence in court

To resolve the contention, the judge took a three-stage approach and assessed the evidence at each step. This included:

Providing evidence on the construction of the Will

Ms T’s evidence was that the Will reflected Mr B’s instructions to leave the property to his son as a gift, but only once his wife no longer needed it as her home. Ms T reiterated that the residuary estate was to be left to Mr D and Ms C, in equal shares and expressly did not include the property.

Ms T attempted to reflect Mr B’s intentions by amending the Will to express his desired wishes. Contention arose as to whether the stated Trust of the property for the benefit of Mr B’s wife was valid, as she had died before him. Representatives for Ms C argued that if the Trust period never began, the Trust failed, leaving the property to become part of the residuary estate.

Ms T gave evidence that this was not the case and that the terms of the Will were in accordance with Mr B’s express intentions, and that these intentions were reflected both in the Will and in her attendance notes.

As such, there was clear evidence in favour of Mr D. The judge ultimately concluded that Mr B’s intention of leaving the property as a gift to his son was affected by the terms of the Will. However, the judge additionally explored the following evidence.

The instructions for, and execution of, the Will

Evidence of Mr B’s intentions, the instructions for, and execution of, the Will was provided by Ms T and Mrs H in favour of the Trust clause being effective. It was clear throughout their evidence that Mr B intended to leave the property to Mr D in its entirety, only subject to it being available to his wife if she survived him and needed it as somewhere to live.

Family evidence

Mr D stated that he was told over many years by his father that he would inherit the property. He also recalled a meeting with Mr B’s accountant where the same wishes were expressed, alongside Mr B’s intentions regarding the other properties and the residuary estate.

Recollection of these conversations by both Mr D and Ms C differed significantly; their versions of the same events supported their respective positions. The judge considered that the evidence, on balance, matched the court’s assessment of the Will.

The judgment

Without the evidence from the time of the creation of the Will and the course of proceedings offered by Ms T who wrote Mr B’s Will, settling the case appropriately would have been extremely challenging. This demonstrates the importance of seeking a solicitor’s advice when writing a Will to avoid disputes in the future where possible and to resolve them quickly where not.

The judge found the Will in favour of Mr D at all three stages he was gifted the property as Mr B, the Testator wished.

Further information

This case serves as a reminder of the importance of having a professional Will Writer draft and execute your Will so that your intentions can be carried out as you wish, should there be any contention or challenges in the future. Our expert Will writing solicitors can ensure that your wishes are properly recorded and executed to safeguard them for the future. We can also assist in repairing discrepancies in previously prepared Wills, ensuring that the Testator’s wishes are carried out.

Equally, if you believe that you have grounds to contest a Will, our inheritance disputes solicitors are here to help.

To speak to our expert solicitors in Bristol and South Gloucestershire, call us on 0117 325 2929 or fill out our online enquiry form.


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