Morag Yellowlees

The old adage of ‘never put off what you can do today’ is rarely truer than when it comes to our Wills and making sure they reflect our life now, rather than when they were first made.

Morag Yellowlees is a Partner in the Private Client department at Lindsays

If the world since the onset of the Covid-19 pandemic has taught us anything, it’s that our lives can change in a flash - and that we need to do all we can to be prepared for all manner of things that we would often rather not think about.

And, while it’s certainly true that the tragic consequences of coronavirus have spurred many into taking steps to ensure their personal affairs are in order, people should not fall into the trap of thinking that a Will, for example, is a forever plan.

As our circumstances evolve, so too should our Wills – with a recent case in Wales highlighting the importance of not just making one, but ensuring that changes needed are thought about and acted upon sooner rather than later.

This centred on a dispute over the validity of the third and final Will of a man who was a part-owner of a construction company and sole owner of extensive farmlands. He had made significant changes to beneficiaries in this final draft.

He had been father to three children, but one son had sadly died 10 months before the contested Will was written.

As was good practice in the man’s specific circumstances, the solicitor drafting the new Will had the man assessed by his family GP who confirmed there was no issue with his ability to change his arrangements.

In the months between the death of the Will writer’s son and the drafting of the third Will there had been a marked deterioration in the writer’s health.

Although the solicitor had obeyed a golden rule by obtaining an expert medical assessment, this did not guarantee the validity of the Will.

Following his death in 2017, the man’s daughter and his late son’s widow disputed the Will, claiming a lack of testamentary capacity and also claiming that the deceased’s surviving son, as main beneficiary under the new Will, had used undue influence.

They also argued that, due to the deceased’s words and conduct, they believed they had the right to expect to be given an interest in lands which were left elsewhere.

At the hearing, a consultant psychiatrist found, like the GP, that the man had testamentary capacity when his third Will was written and executed

But the crucial testimony was from the family’s GP, stating that he had been led to believe the changes to the Will were minor - and that this was also the deceased’s understanding. These proved the Will’s undoing, with the judge finding that it was invalid on the basis of a lack of testamentary capacity.

The lesson we can all take from this is for us all to put a Will in place early and ensure any changes are made early and as they arise.

Doing so not only ensures that your estate passes as you wish but also safeguards against a medical condition which deteriorates quickly and unexpectedly – as we have unfortunately seen with so many cases of Covid-19. With a properly advised and drafted Will in place there is little opportunity for misunderstanding.

Morag Yellowlees is a Partner in the Private Client department at Lindsays