A Defective Will, a Disappointed Stepdaughter and an Unadministered Estate

The 2018 will is not automatically invalid because it lacks an attestation clause. Section 9 of the Wills Act 1837 requires signature by the testator, or by someone in his presence and by his direction, and attestation by two witnesses present at the same time. An attestation clause creates a presumption of due execution, but its absence only means the propounder must prove the formalities by evidence. Joan and Martin can give that evidence if they saw Harold sign and then signed in his presence.

The witness-beneficiary rule is the key judgement. Section 15 voids a gift to an attesting witness or to the spouse of an attesting witness. Claire is neither. Joan is Claire's aunt, not her spouse; Martin is Joan's husband, but Claire is not Martin's spouse. The gift to Claire is therefore not caught by section 15. The description 'my stepdaughter' is consistent with the facts: Claire is Elsie's daughter and Harold's stepdaughter. If the evidence shows due execution, the flat passes to Claire, and the 2018 will revokes the 2010 will. If due execution cannot be proved, the gift fails and the 2010 will remains because an invalid later will does not revoke an earlier valid one.

If the 2018 will is valid, the flat (£310,000) passes to Claire as a specific gift. The residue is held for 'my children'. That means Sarah and David. David predeceased Harold leaving two children, so section 33 of the Wills Act 1837 presumes that David's share passes to his issue, unless a contrary intention appears. Sarah and David's two children therefore share the residue, with David's children taking his one-half between them. The joint building society account (£95,000) is held on joint tenancy with Elsie; it passes to her by survivorship and is not part of Harold's estate for distribution, though it may be included in the IHT account and may be eligible for spouse exemption. If the 2018 will is invalid, the 2010 will leaves everything to Elsie. The joint account still passes by survivorship. The intestacy rules are not engaged because the 2010 will remains. Sarah should not transfer the flat before probate; the specific gift is subject to the payment of debts and IHT if the estate is insufficient, but on these figures the estate appears solvent.

Sarah is both executrix and residuary beneficiary. That is not fatal, but it creates a conflict because her share of residue is affected by whether Claire's gift stands and by the cost of administration. She must act in the estate's best interests, not her own, and should not use her position to defeat Claire's gift without proper grounds. She should apply for probate, complete the IHT account, pay debts and IHT, and only then assent to the flat. Claire has no right to immediate transfer; executors have a year to administer, and a specific beneficiary cannot take before debts are cleared.

If Sarah wishes to challenge the will, she should take independent legal advice and consider whether the estate should be represented by an independent administrator or whether the court should be asked to determine the issue. A deed of variation within two years of death could redirect the flat or residue for IHT purposes, but all affected beneficiaries must agree. David's children are minors, so their consent would need court approval. Sarah should also consider the earlier will and any claim under the Inheritance (Provision for Family and Dependants) Act 1975, though none is mentioned.