Beware of homemade Wills!

The case of Poole v Everall which has recently come before the High Court considered the validity of a homemade Will. Of course the availability of ‘free’ Wills online have seen a significant increase in the setting up of homemade Wills, but as result we are seeing more and more cases coming to court where the validity of such Wills are being challenged. The problem for most non- professionals is that they are unaware of all the conditions that must prevail to ensure that a Will is valid. As the Poole case illustrated, even if just one condition is not met a Will can be set aside.

The case concerned the Will of David Poole. Mr Poole had been severely injured in a motorbike accident which had left him with permanent physical and psychiatric disabilities. He received by way of damages over £1 million to pay for his long-term care. This fund was managed for him by a court-appointed deputy, who was a solicitor in private practice.

Mr Poole was unable to look after himself and had been periodically sectioned in a mental hospital on account of psychotic episodes linked to drug abuse. In 1994, he was placed by his local social services department in the home of a professional carer called Everall, who acted as his full-time carer as well as landlord in return for a regular weekly payment. By the time of Poole’s death in March 2013, these payments had risen to around £1,000 a week.

Poole left a Will, completed in December 2012, appointing Everall as his executor and leaving him virtually all his estate, which was still worth over £1 million. Alarm bells rang for Poole’s deputy when a) he only learned about Poole’s death after Everall had obtained a grant of probate ; b) on reviewing the Will lodged with the grant, it was obvious that it was home-made with no involvement of a professional or assessment of mental capacity ; c) it became apparent that Everall himself had drafted this Will and finally d) the deputy had prepared an earlier Will for Poole the previous February leaving significant sums to various charities as well as to his brothers.

Poole’s two brothers challenged the December 2012 Will on the grounds of improper execution, lack of testamentary capacity, lack of knowledge and approval of its contents, and undue influence and fraudulent misrepresentation on Everall’s part. The court considered each of the four grounds in turn and rejected them all, except one. Despite there being some confusion about the date of the Will’s execution and a suggestion that the witnesses were not both present when Poole signed the Will, the witnesses later produced statements that were sufficient to satisfy the court that the requirements of formality had been completed. On capacity, evidence of the testator’s history of brain injury, psychiatric illness and lack of capacity to manage his financial affairs was put to the court. However, Poole had undergone a professional capacity assessment when he made the earlier Will in February 2012, and there was no evidence of deterioration since then. The challenge on undue influence grounds was likewise dismissed because the burden of establishing it was on those opposing the Will, and the brothers failed to do so adequately.

Importantly however, the court did accept the brothers’ challenge based on lack of knowledge and approval. In this case, the burden of proof is on those propounding the Will, namely Everall. The court concluded that Everall had deliberately isolated Poole from other people, and did not tell him that the ‘new’ Will had revoked gifts made in his previous Will to members of Poole’s family and some charities nor did he draw Poole’s attention to the extent of the actual gift in Mr Everall’s favour. For these reasons the court ordered a declaration to be made in favour of the February 2012 Will which had been drawn up by a professional, giving Poole’s estate to his brothers and the charities.

If you would like to discuss setting up a new Will or wish to have your current Will reviewed then please do contact websters’ in house solicitor Liz Hooley