Unconventional wills: valid or intestacy?

When is a will not a will? Solicitor Nick Flower, of Anglia Research, outlines the various forms that an unconventional will can take, and discusses the potential validity of each.

Given the sheer number of cases that our firm has dealt with over almost 40 years, it’s not surprising that we've been involved in a few intestacies arising from ‘oddball’ wills – that is, wills in an unusual format.

Whether you are a solicitor dealing with such a case, or a relative of a deceased person who has left an unconventional will, the key question will be: is this valid or not?

Although the strict laws around how wills are drafted and executed are normally interpreted by the courts as prescriptive, the answer is not as clear as you might expect.

Holographic wills

Deriving from the Greek words for ‘whole’ and ‘writing’, a holographic will simply means a will that is handwritten and signed by the named testator. These days, it is rare for anyone to risk a handwritten will, but since the law does not stipulate what format a written will must be in, holographic wills should be valid, as long as they comply with the legal requirements of the Wills Act 1837.

In short, these wills must be properly executed and witnessed, and there should be no evidence of mental incapacity or duress in the circumstances surrounding the making of the will.

Nonetheless, holographic wills undoubtedly carry a higher risk of errors and potential complications. If worded by the testator without using legal terminology, ambiguity can arise and open up differing interpretations that might lead to contentious proceedings and a full or partial intestacy. Faulty spelling, punctuation and grammatical mistakes can add to this.

The shortest will in England?

A historic example of this is probably the shortest will in England, which resulted in the court case Thorn v Dickens [1906] WN 54. The testator had left a will simply stating ‘All for mother’, and a dispute arose because the testator was known to have referred to his wife as ‘mother’. Evidence was submitted and the court decided that is was indeed his wife who was entitled to the estate. 

A recent case that brings together many of the issues with holographic wills is Vucicevic and Bond v Aleksic & Ors [2017]. This was a dispute over the estate of Veljko Aleksic, a man from Montenegro who had become a British citizen and lived in the UK most of his life, who died in London in 2014 at the age of 91.

Aleksic had left a holographic will from 2012 that did not contain an attestation clause, and was not properly dated. There were numerous problems with interpretation. Some of the beneficiaries were unclear, for example, the will named ‘Brit. Cancer Research’, which is not an existing organisation, so the sum was split by the Attorney General between a number of cancer charities in the UK.

There was also a dispute over whether a partial intestacy had arisen as a result of a badly-worded residuary clause. Usually, such a clause disposes of the estate that remains after all other gifts in the will have been satisfied. However, Aleksic had used the phrase ‘And all the money. Which is left’, leaving a question over whether this would include leftover, non-monetary assets. The court found that ‘bad English can still make a good will, as long as the testator’s meaning can be understood’.

Due to the placement of the clause at the end of the will, and bearing in mind that English was Aleksic’s second language – the word ‘money’ having a broader meaning in Montenegrin – the judge allowed the phrase to function as a residuary clause, and all assets were disposed of under the will.

Mistakes in mirror wills

This case appears to follow on from the pragmatic Supreme Court decision in Marley v Rawlings and another [2014], in which a married couple had executed mirror wills together, but each had mistakenly signed the will belonging to their spouse rather than their own. Under the circumstances, the judge interpreted that the wills, which were otherwise duly executed and witnessed with a solicitor present, were valid in line with the requirements of s.9 Wills Act 1837, and the mistake could therefore be legally rectified under s.20 of the Administration of Justice Act 1982.

While the cases above might suggest that the courts may be willing to exercise a more flexible approach where the wishes of the testator are clear and there is no suggestion of fraud, incapacity or duress, it remains prudent to exercise extreme caution when it comes to holographic wills

Nuncupative wills

A nuncupative will is a will made orally by the testator. Although such wills are informal and do not comply with the usual requirements for validity set out in section 9 of the Wills Act 1837, in specific circumstances, they are allowed in law.

Under section 11 of the 1837 Act and section 2 of the Wills (Soldiers and Sailors) Act 1918, a soldier or member of the naval or marine services need not comply with s.9 to make an enforceable will, so long as they are in ‘actual military service’, including being ‘at sea’. These are sometimes referred to as ‘privileged wills’.

In practice, this meant that soldiers, sailors and seamen could verbally bequeath their estate if they were in imminent danger. There must be evidence from surviving witnesses that there was an intention that the words have a testamentary effect, that is, the effect of disposing of the testator’s assets to the identified beneficiary.

Donatio mortis causa

The common law doctrine of ‘a gift in prospect of death’ (donatio mortis causa) dictates that a deathbed gift which does not comply with the formal requirements for a will may constitute a valid will.

Often such a gift is made by an individual on their deathbed. In Vallee v Birchwood [2013], the court decided that death need not be imminent, so long as the gift is made ‘in contemplation of death’.

In this case, an elderly but not unwell man had told his daughter that he thought he might not live until the following Christmas and that he wanted to leave her his house. He gave her the keys and ownership deeds. This was deemed to constitute donatio mortis causa.

However, the decision has since been overturned so that the donor must have good reason to anticipate death in the near future from an identified cause, in King v Chiltern Dog Rescue and Redwings Horse Sanctuary [2015]. This limits the scope of the doctrine, bearing in mind the possibility it could be used as a route to validate improper wills. Lord Justice Jackson set out the three requirements as follows, that:

  • The donor contemplates their impending death.
  • The donor makes a gift which will only take effect if and when this contemplated death occurs. Until then, the donor has the right to revoke the gift.
  • The donor delivers dominion over the subject matter of the gift to the recipient.

While the doctrine has some uses in very specific circumstances, it is clear that deathbed gifts should be avoided in favour of a formal valid will. Most people who die due to illness or old age have sufficient time to make a conventional will, and this is not something that should be left until the last minute or be done hastily.

In practice, a deathbed gift can be very difficult to prove and is extremely vulnerable to being challenged in court. It will be rightly subject to considerable scrutiny due to the high risk of fraud, and will require a high standard of evidence. There are also significant challenges for assessing the testator’s mental capacity and susceptibility to undue influence.

For example, at the end of life, people are often very sick and could be taking pain relief medication that affects their decision-making abilities or understanding. They may be more likely to submit to the will of others due to extreme fatigue. A successful challenge would lead to assets being disposed of under the rules of intestacy, rather than in accordance with the wishes of the deceased.

The future of wills is digital

The Law Commission’s consultation on wills included proposals such as allowing the courts to dispense with the formal requirements contained in s.9 of the 1837 Act where it is clear what the deceased wanted, and the introduction of digital wills. According to the consultation document, ‘a person who is seriously ill in hospital may have more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than to write.’

While methods that make it easier for people to put a will in place should be welcomed, this must be balanced with the need for safe practices, and the risk is that digital methods may not offer the same protection against fraud as the current procedure of face-to-face signing and witnessing. We hope that the Law Commission’s forthcoming recommendation document puts forward some practical suggestions as to how this could be managed. 

Rules of Intestacy England and Wales

About the author

Nick Flower is head of probate administration at Anglia Research.