Is your Will up to date?

A recent survey commissioned by the Law Society revealed that 68% of people in the East Midlands and 48% in East Anglia did not know whether or not their Will was up to date. In addition, rather worryingly, 42% of people who are divorced, widowed or separated do not know whether their Wills are up to date and take account of their changed circumstances.

In the case of Thorner v Major, which has recently been decided by the Court of Appeal, in 1976 Peter Thorner, a Somerset farmer, was left distraught by the death of his wife. His cousin Jimmy and Jimmy's son, David, helped Peter out in the aftermath of his wife's death and continued to help run the farm. David in particular devoted a huge amount of time to helping Peter run the farm and manage his personal affairs from 1976 until Peter's death in 2005. The farm was Peter's only real interest and passion in life.

David was never paid and had he been, the farm could not have run as a profitable business. David was the only family member of his generation interested in farming and he helped Peter out of a sense of family duty and loyalty. Consequently, without it ever being said, it became understood that David would inherit the farm from Peter.

In 1997 Peter made a Will which gave some legacies, including £50,000 to a friend of his called Sam. The Will left the rest of his estate to David. At some point after writing his will, Peter fell out with Sam and so regretted the very generous legacy he had planned to give him. Peter asked his solicitors to send him his Will, which they did, and he then destroyed it and so revoked it.

Peter never made a new Will and he died in 2005 intestate. This meant that his estate, including the farm, passed to his surviving brothers and sisters and the children of his brothers and sisters who had died previously. He had not been close to any of them and none had helped him during his lifetime to the extent that David had.

For David to get any share of the farm he had to bring a case showing that Peter had promised to give him the farm and that Peter had intended him to rely on that promise to continue working for nothing for all those years.

Unfortunately, Peter had never made any express promise to leave the farm to David as it was simply an understanding between the two. David had not acted as he did because he thought he would inherit the farm, but had acted as he did out of duty and loyalty. For this reason the Court of Appeal decided that he was not entitled to the farm or any of the estate.

Without a Will David's only chance of inheriting the farm was to undertake costly and, ultimately unsuccessful, litigation.

Lord Justice Lloyd concluded: "As it is, this is another case where what appears to have been a man's testamentary intentions have failed because, for whatever reason, he did not take the proper steps to put them into effect. It may be thought that David had a strong moral claim to inherit Peter's farm, after the unstinting help he gave to Peter, both on the farm and in personal support to him in his life, over almost 30 years. Unfortunately, because Peter revoked his 1997 will and did not make another, David's claim depends on making good a proprietary estoppel entitlement."

This case illustrates how important it is to be sure you know what your Will says and that this continues to reflect what you want to happen in the event of your death. If you revoke a will or want to change a Will you must make sure that there is something to replace it.

For further information on Wills contact Emma Satterly in our Private Client Team.