When is a Will not a Will?

In some jurisdictions in the world – including in certain states in the US – a verbal Will may be considered valid. However, in the United Kingdom, for a Will to be considered legally enforceable it must be written down, preferably by an experienced solicitor for Wills using the appropriate language, and correctly signed and witnessed.

Once a Will is in place, any amendments should also be made formally through a signed and witnessed codicil, as any change to the original document could invalidate it.

So, what happens if, on your deathbed, you tell someone that you want to cut one of your children out of your Will or you decide to leave your entire estate to a donkey sanctuary? And what happens, if you have made a verbal promise to someone about an inheritance, but your Will does not reflect this?

Testamentary freedom is one thing, but being able to prove the wishes of a deceased person without a valid, written Will is entirely another. There are numerous examples of family members who have disputed a verbally made inheritance agreement or spoken Will – often contesting it through the courts at considerable cost and contention. Here we take a look at some of these cases.

The Davies proprietary estoppel lesson

In 2016, a Court of Appeal ruling saw the £1.3m payout to a Carmarthenshire farmer, Eirian Davies, reduced to £500,000, overturning a previous court decision. The proprietary estoppel case hinged on a verbal declaration made by Ms Davies' parents that she would inherit the majority share of the family run farm.

Ms Davies, one of three sisters, had long worked the family's Henllan Farm in Whitland for only “meagre wages” while her sisters enjoyed a less demanding lifestyle. She did this based on the verbal assertion of the inheritance.

"Even on my birthday, when the other girls were having things, [my parents] would say 'you will have the damn lot one day'," Davies told the court.

The court heard that Ms Davies had, at one point, been shown a draft Will under which she would have inherited land, buildings and a share in the business; however, her parents altered the Will so that the estate would be distributed equally among the three sisters. This resulted in an altercation in 2012 in which her parents tried to evict Ms Davies from the farm.

Ms Davies took her parents to court and this initial claim was resolved with the court awarding her the lion’s share of the estate. However, in 2016, the Court of Appeal ruled that this was "far too generous” and cut the £1.3 million award to just £500,000.

Newspaper reports at the time indicated that legal costs incurred across the case ran to a ‘high six-figure sum’.

The Ivory dispute

In 2020, the emerging probate dispute case of the Ivory family has been widely reported in the press. The case, being heard in London's High Court, involves the estate of deceased widower Mick Ivory, his three brothers and a nephew.

Mr Ivory died in 2018 without having made a Will. He left an estate valued at £414,000. According to the rules of intestacy, Mr Ivory's three brothers Peter, Alan and John, and Mr Ivory's nephew Michael would all have inherited shares of the estate. However, Peter claims that his brother gave him death-bed instructions not to let the rest of his family “get their hands on his hard-earned money”.

Peter Ivory therefore distributed Mr Ivory's estate of £367,000 (after expenses), and a valuable collection of Osmond memorabilia, to numerous beneficiaries. He kept Mr Ivory's beloved pedigree dog.

Peter claimed this was in accordance with Mr Ivory's verbal Will; giving everything away to the poor, deserving and needy.

“Mick told me to keep it all, and if I couldn’t keep it to give it away,” Peter told the court. “His whole plan was to make sure they didn’t get it.”

Unfortunately, there is no formal record of Mr Ivory's apparent intentions and Peter has retained no evidence or useful memories of to whom he distributed the money. He did say, however, that he had driven to Cambridge with £150,000 in the boot of his car and that he shared the money among various hard-up strangers and homeless people in the city, as well as donating amounts to various charities.

Outside of the court, the wife of Peter Ivory said that the money has also been used to pay for friends to go on holiday, while a further sum had been donated to a local school.

In his defence, Peter claimed ‘donatio mortis causa’ (a gift given by a dying person) and that as the estate was given to him, there is no residue to be distributed among the other family members.

Judge Teverson adjourned the case, demanding a full and detailed explanation of where the money has been distributed. Peter could face a prison sentence if he fails to obey the court's request.

Are there any exceptions for non-conforming Wills?

UK law has, as yet, not fully tested whether certain types of non-written Wills, such as recorded audio or video Wills, can be considered valid and binding. However, the trend for this type of Will is growing in some parts of the world, particularly in the United States.

In 2014 a case in Queensland, Australia involved a Will that was sent as a text message. Strangely, and despite the fact that the Will was not witnessed or signed but only sent from the deceased man’s phone shortly before his death, this Will was upheld.

Eventually, it would seem, there will almost certainly be a test case in the UK involving a video Will or some other form of non-written last Will and testament and, presuming the testator appears of good mind and is accompanied by two impartial witnesses, there is no reason to believe a court might not accept it – particularly if a Queensland court can accept a text message Will.

However, as it stands, no person should rely on any version of a non-written Will. While they could perhaps be considered as supplementary to a written Will, they cannot, as yet, be used in lieu of a properly-drafted written document.

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