Personal Law

This is a story of why a clear and unequivocal will is a good idea. Not because more unusual documents cannot be valid wills, but because of the process, cost and angst associated with confirming whether or not such a document is valid.

For viewers of BBC One’s The One Show, you may have recently seen a spot on the opening up of the (English) archives that store and record wills. As The One Show (admit it, you are humming the tune now) pointed out, this allows access to the last wishes of the great, good, not so good, famous and infamous.

The One Show piece also highlighted that there can be unusual ways of making wills. One example was a will written on an egg. While that may be a cracking idea, we would not recommend it as the best (or even in the top 10) way(s) to document one’s final wishes.

Melanie Gibson’s diary and will

A very recent Scottish court case has looked at another unusual form of making a will to ascertain whether or not it was a valid testamentary document. The case surrounded the intentions of the late Melanie Gibson. From the court report, unfortunately her life did not appear entirely happy as it was noted in evidence that she was a “functioning alcoholic” amongst some other tribulations.  She appeared to be an avid keeper of a diary.

Ms Gibson had left the following writing in her diary notebook:-

Nearly 51?

Life is s[ ]t at this time!!! [the court report has the full wording!]

*Please remember. If Anne [one of Ms Gibson’s siblings] is still alive, I want her to have my wealthy remains – the house, pension, savings and everything else…

I hope my family accept this…

IT IS MY WISH

[signed Melanie Gibson]

20/01/2012”

Another entry in the diary notebook said that the notebook should not be taken to a “greedy lawyer!”.

The issues

If the document was a valid will, Anne would inherit. If the document was not valid, then all of Ms Gibson’s siblings under the laws of intestacy (i.e. where there is no valid will) would inherit.  Anne sought to invoke the process “for special warrant to issue Confirmation” (a less common process to obtain Confirmation (probate)) and that needed the notebook entry to be a valid will.

The sheriff principal (for this was an appeal from a sheriff who decided it was not a valid will) decided it was a valid will. The sheriff principal highlighted that:-

  • the wishes of Ms Gibson were clear from the entry and any other entries on the subject (to the extent they were legally relevant) were consistent with her wishes to benefit Anne;
  • just because the diary notebook is a somewhat “informal” document does not prevent it containing valid testamentary wishes;
  • the case law says the language of the deceased needs to be considered to understand whether or not they have expressed a concluded testamentary instruction (colloquial or even somewhat crude language does not prevent a written instruction being a valid will);
  • the capital letters deployed in the notebook entry were to EMPHASISE the deceased’s wishes; and
  • not wishing a “greedy” (or perhaps any) lawyer to see the notebook was more likely to be an indication of a wish not to have the wishes challenged rather than a wish that the notebook should not be considered to be her will.

The outcome of the sheriff principal’s decision is that the notebook entry was a valid will (some might describe it slightly archaically, legalistically and under pre-1995 law as a “holograph” will (what matters post-1995 is whether or not it is valid irrespective of how the words attach themselves to the paper- handwritten, typed or something else)).

The will was valid and everything is “OK”.  So, what are the lessons?

Yes, the will was valid, but is everything “OK”?  By the use of this somewhat unorthodox diary entry method it caused greater confusion, angst and no doubt cost for the family members involved than would otherwise be required. A more common form, professionally produced will should mean there is no need for court processes to determine the validity or the wishes of the deceased. Ms Gibson’s will is valid, but it involved much greater time and effort to get that point. A trait of many “homemade” or “DIY” wills I have seen.

I would also note (as it is topical) that Ms Gibson was perhaps well-informed seeking to pass pension wealth to her family (albeit attempting to do it as a bequest under her will). I do not intend to take that point further but would note we have set out some thoughts on the topic of pension death benefits (and other death benefits) in a previous update.

This blog was written by Alan Eccles- 0141 245 6255 or alan.eccles@brodies.com

For more on wills or disputes about wills and estates (Brodies is the only Chambers & Partners Band 1 rated firm for both private client and litigation matters) please contact your usual Brodies’ contact or any of the following:-

Alan Barr- 0131 656 0103 or alan.barr@brodies.com

Susanne Beveridge- 0131 656 0218 or susanne.beveridge@brodies.com

Mark Stewart- 01224 392 282 or mark.stewart@brodies.com

Norman Kennedy- 0141 245 6265 or norman.kennedy@brodies.com

Alan Eccles- 0141 245 6255 or alan.eccles@brodies.com

Christine O’Neill- 0131 656 0286 or christine.oneill@brodies.com

Alan Eccles

Partner at Brodies LLP
Alan is a Partner specialising in private client (succession, incapacity and asset protection) matters as well as the charities, third and impact sectors.
Alan Eccles