Making a will requires freedom of choice

Posted: 27th March 2019

PenMaking a valid will involves a free exercise of choice by someone who understands the effect of the bequests they are making.

A judge emphasised those points in finding that a mother’s independent wishes were overborne before she cut her five daughters out of her will.

The woman and her husband had amassed a seven-figure fortune through running a successful restaurant and from canny property investments.

He held a traditional belief that their daughters were their husbands’ responsibility and that all the couple’s wealth should instead be left to their only son, who would carry on the family name.

Pursuant to that belief, the majority of the couple’s assets had been transferred to their son prior to the woman’s death. By her final will, she left her only substantial remaining asset – her share in the restaurant premises – to her son, disinheriting her daughters. A few weeks later she gifted that asset to her son’s son, thus ensuring that the whole of the restaurant would continue in the male line.

After one of the daughters launched proceedings, the judge found that the woman had executed her final will under the undue influence of either her husband, her son, or both of them, and that the same applied to the gift to her grandson. In those circumstances, the judge set aside both the gift and the will and gave effect to a previous will by which she had left her estate to her six children equally.

The judge found that the woman’s freedom of choice had been worn down by the pressure that had been put on her and that her will and the gift represented her husband’s wishes rather than her own. Her wish to leave something to her daughters had been a constant source of friction within the family, and the judge noted that it was likely that her desire to avoid family squabbles and to enjoy a peaceful life had played a large part in her giving way to her husband’s views.

The Court was also satisfied that the woman lacked the required knowledge and approval of the contents of her final will. She had only a basic command of the English language and had suffered a stroke before signing the document, which rendered her vulnerable and dependent on her husband and son.