The Unwitnessed Codicil and the Fading Testator
Mr. A, aged 84, executed a will in 2019 leaving his entire estate to his two sons in equal shares. In March 2024, while hospitalised with a terminal illness and receiving regular morphine, he asked his daughter to type a short document leaving the family cottage to her 'in recognition of her care'. She typed it, and Mr. A signed it at the bottom in the presence of a nurse and a cleaner, but neither signed as a witness. He died three weeks later. The estate is worth approximately £640,000, of which the cottage is £290,000. The daughter now claims the cottage under the 2024 document; the sons dispute it. Medical notes describe Mr. A as 'drowsy at times but oriented to person and place' and record that he discussed the cottage 'coherently' with a visiting friend two days before signing.
1. Advise on the formal validity of the 2024 document and the consequence if it fails.
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The 2024 document is a purported testamentary instrument and must satisfy the Wills Act 1837, s.9: it must be in writing, signed by the testator (or by someone in his presence and at his direction), and the signature must be made or acknowledged in the presence of two witnesses present at the same time, each of whom must attest and sign. Here the nurse and cleaner were present but neither signed, so s.9 is not satisfied and the document is formally invalid as a will or codicil.
An invalid instrument cannot revoke or amend the 2019 will. The 2019 will therefore stands, and the cottage falls into residue passing to the two sons in equal shares. The daughter takes nothing under the 2024 document.
Possible escape routes: (i) could it operate as a secret trust? No - a secret trust requires communication and acceptance by the intended trustee during the testator's lifetime, and the 2019 will makes no gift to the sons 'on trust' for her; (ii) could it be a donatio mortis causa? Only if there was delivery of the property or its indicia (e.g. title deeds/keys) in contemplation of death - signing a document is not delivery; (iii) proprietary estoppel or a claim under the Inheritance (Provision for Family and Dependants) Act 1975 remain open but are separate causes of action requiring proof of assurance, reliance and detriment (or dependency).
2. The sons also argue the 2019 will should be challenged for lack of testamentary capacity and undue influence. Assess the strength of each argument on these facts.
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Capacity (Banks v Goodfellow): the testator must understand (a) the nature of the act and its effects, (b) the extent of the property being disposed of, and (c) the claims to which he ought to give effect, and be free of a disorder of mind that poisons his affections or perverts his sense of right. The medical notes ('drowsy at times but oriented') and the coherent discussion of the cottage suggest capacity was probably intact at the relevant time. Morphine causing drowsiness does not by itself negate capacity; the question is capacity at the moment of execution. The presumption of capacity applies to a duly executed will, and the sons bear the burden of rebutting it. Their argument is weak on these facts, though a contemporaneous capacity assessment would have been prudent.
Undue influence (probate sense): this requires coercion - pressure that overbears the testator's free will so the will expresses the coercer's wishes, not his own. It is not the same as the equitable presumption arising from a suspicious transaction. Mere persuasion, appeals to affection, or the fact that the daughter typed the document are insufficient. There is no evidence of threats or isolation from advisers. The sons' undue influence argument is likely to fail.
Practical point: because the 2024 document is invalid, the challenge to the 2019 will is academic unless the sons wish to argue total intestacy - which would produce the same result (sons share residue) and cost more. Advise settlement focus on the daughter's potential 1975 Act claim instead.