What Can You do With an Unsigned Will?
For many people, death is unexpected. They die younger than they expect to, at times when they do not expect to, and often without having ‘got their affairs in order’. Of course, not everyone who lives to a ripe old age has their affairs in order either, but there is a slightly higher chance that they will have done so!
I often see clients who explain that the deceased had made their intentions clear, sometimes even to the extent of making a will, but did not have a chance to sign it. They want to know whether it is possible to put the provisions of the unsigned will into effect in any case – often to avoid the unwelcome effects of an earlier will or an intestacy.
Unfortunately, unless a will has been properly signed and witnessed in accordance with s9 of the Wills Act 1837 it will not be valid and cannot be admitted to probate. The Court will not normally step in to order that the unexecuted will take effect, although it may take the deceased’s intentions into account when considering a claim under the Inheritance (Provision for Family and Dependants) Act 1975. It may, of course, be possible to agree with the executors and beneficiaries that the terms of the unsigned will take effect and enter into a Deed of Variation or other forms of settlement on that basis, but this will usually only be the case when the parties are on very good terms. It may also be possible for disappointed beneficiaries to bring a claim against solicitors who have acted negligently in, for example, taking too long to prepare a will where the testator has died in the meantime.
It is also very unusual for a court to step in to complete any other type of transaction which is incomplete at the date of death – and this has been confirmed by the court in the unreported case of Waghorn v Waghorn (Executors of the estate of Waghorn deceased) (2013). In that case, the court struck out claims by disappointed beneficiaries of a trust who alleged that the deceased had intended to settle real property under discretionary trusts of which they would be the beneficiaries. The deceased’s solicitors had prepared the relevant documents for the transactions but had developed concerns about the deceased’s capacity and so they had not been signed. After investigating, it became clear that the deceased had had capacity at the relevant time, but had since developed dementia and was unable to enter into the trusts.
Following the deceased’s death, the disappointed beneficiaries registered a unilateral notice over the property, and sought recognition from the Court that the incomplete transaction be legally effective. The Court refused to do this on the grounds that the deceased had not done ‘all that she could’ to enter into the transaction – she could have signed the documents notwithstanding the misgivings of her solicitors. There was, therefore, an incomplete gift which the Court would not act to complete. The only circumstances in which the court would step in were where the donor had done everything which could be done but where the steps they had taken were not effective for some reason. This is a very high threshold, and it is unlikely to be reached in many cases.
The lesson is to expect the unexpected and, as far as possible, to be prepared. It is never too early to make a will – it can always be updated and it provides the only effective way to ensure that your wishes are put into effect after your death.
Also Read: How can you minimise the impact of death, divorce and dementia on the lives of your family members.