“Volaw Trust” - A strengthening of the privilege against self incrimination from requests for pre-existing documents?
Re Estate of Dorothy Patchett Whelan (Deceased); Royal National Institute for Deaf People and others v Turner 
The High Court has ruled in the favour of four charities, Marie Curie Cancer Care, the Royal Institute of Cancer Care and the Royal National Institutes of the Blind and Deaf, the residuary beneficiaries under a will dated 21 October 1982 (“the 1982 Will”) who challenged the validity of a later homemade will alleged to have been executed on 1 November 1999 (“the 1999 Will”) on the grounds that (1) the will was not executed in accordance with section 9 of the Wills Act 1837; and (2) want of knowledge and approval. There was also a question of whether the 1982 will had been revoked; the original will had never been found and it was submitted that the deceased had revoked the 1982 Will by destroying it. See judgment here.
Want of knowledge and approval claims arise when the circumstance surrounding the making of a Will appear to be suspicious. In order to validly execute a will, a testator must have knowledge and approval of the contents. Judge Behrens agreed that there were features of the 1999 Will that excited suspicions, not least (i) it was a homemade will prepared or at least obtained by the principal beneficiary; (ii) it was not clear when bequests were inserted or who by; (iii) there was no evidence that it was read over to the deceased; and (iv) it was not properly attested. However, these features were set against the fact that there was no doubt that: (i) the deceased had signed the 1999 Will; (ii) there was evidence of the deceased’s intentions; (iii) the beneficiary was a life long and close friend of the deceased; (iv) the deceased had no close relatives and did not wish to benefit distant relatives; (v) the terms of the 1999 Will were relatively straightforward and easy to understand; and (vi) the legacies and residuary gift were readily explicable. Taking all of the factors into account Judge Behrens determined that the deceased did know and approve the contents of the 1999 Will.
Section 9 states that in order for a will to be valid, the testator must sign the document in the presence of two witnesses who must each attest to the signature and sign the will themselves. In this case the two purported witnesses asserted that the deceased had not been present when they attested the 1999 Will. This evidence was accepted and in the circumstances the 1999 Will was found not to have been executed in accordance with section 9 and consequently not admitted to probate.
Finally, the evidence led to the relatively clear conclusion that on the balance of probabilities it was more likely that the 1982 Will was lost rather than destroyed by the deceased with the intention of revoking it. Accordingly the claimants had discharged the burden and the 1982 Will would be admitted to probate.
Royal Society v Robinson & ORS (2015)
The High Court considered an application by the Royal Society, an independent scientific academy, seeking a declaration that a physicist’s bequest that it receive the residue of his estate in the UK be given a wider interpretation so as to include offshore accounts in the Channel Islands and the Isle of Man. Judge Nugee accepted that the technical definition of the UK did not include the Channel Islands or the Isle of Man but applying Marley v Rawlings determined that the Will be interpreted so as to include the offshore accounts because it was clear that this was the deceased’s intention.
Court of Protection hearings to open to public in pilot scheme
Journalists and members of the public are to be given greater access to the Court of Protection. The pilot scheme, which is expected to run from January 2016, will allow access to the majority of hearings and test whether future cases will be held in public, private or just open to the media. An anonymity order will be made to protect those involved, Sir James Munby, President of the Court of Protection and President of the Family Division of the High Court said “It is logical to look at extending this greater transparency to the court of Protection, provided the right balance can be struck to safeguard the privacy of people who lack capacity to make their own decisions”.
Should you wish to discuss a disputed Will or Trust, please do not hesitate to contact our Wills, Trusts and Inheritance Disputes team.
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